[EXHIBIT 4c TO COLONIAL GAS COMPANY
FORM 10-K FOR YEAR ENDED DECEMBER 31, 1995]
COLONIAL GAS COMPANY
TO
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
_______________
Second Supplemental Indenture
Dated as of August 1, 1995
to Second Amended and
Restated First Mortgage Indenture
Additional Issue (Secured Medium Term Notes, Series A) $75,000,000
COLONIAL GAS COMPANY
Second Supplemental Indenture
dated as of August 1, 1995 to Second
Amended and Restated First Mortgage Indenture
The above Supplemental Indenture was filed for recordation
in Massachusetts as follows:
Location Date Reference
Secretary of the Documents Nos.
Commonwealth Sept. 27, 1995 340818 and 340819
Barnstable Instrument No.
County Sept. 27, 1995 --, Book 9859,
Page 297
Barnstable County, Document No. 648544,
Land Registration Sept. 27, 1995 Certificates of
Division Title Nos. _____,
_____, and _____
Middlesex County, Instrument No.
North Division Sept. 27, 1995 42815, Book --,
Page --
Middlesex County, Instrument No.
South Division Sept. 27, 1995 685, Book --,
Page --
Instrument No.
Plymouth Sept. 27, 1995 82825, Book 13854,
Page 222
THIS SUPPLEMENTAL INDENTURE, dated as of August 1, 1995
(hereinafter referred to as this "Supplemental Indenture" or this
"Instrument"), made and entered into by and between Colonial Gas
Company (formerly named "Lowell Gas Company"), a corporation duly
organized and existing under the laws of The Commonwealth of
Massachusetts, having its principal place of business at 40
Market Street, Lowell, Massachusetts (hereinafter referred to as
the "Company"), and The First National Bank of Boston, a national
banking association, having its principal place of business at
100 Federal Street, Boston, Massachusetts, as successor Trustee
(hereinafter referred to, together with its successors hereunder,
as the "Trustee") under the Second Amended and Restated First
Mortgage Indenture dated as of June 15, 1992, as supplemented by
the First Supplemental Indenture dated as of June 15, 1992 (as so
supplemented, the "Indenture"), which amends, restates and
supplements the Amended and Restated First Mortgage Indenture
dated as of July 1, 1981 from the Company to State Street Bank
and Trust Company, as supplemented by the First to Eighth
Supplemental Indentures thereto, inclusive, which amended,
restated and supplemented the First Mortgage Indenture and Deed
of Trust dated as of June 1, 1951 from Lowell Gas Company to
State Street Bank and Trust Company, as supplemented by the First
to Twenty-second Supplemental Indentures thereto, inclusive, and
the Indenture of Trust and First Mortgage dated as of April 1,
1950 from Cape Cod Gas Company (which has been merged into and
with the Company) to State Street Bank and Trust Company, as
supplemented by the First to Twenty-fifth Supplemental
Indentures, thereto, inclusive.
WHEREAS, the Company has heretofore duly executed and
delivered to the Trustee the Indenture to which this instrument
is supplemental, whereby substantially all the properties of the
Company used by it in its gas business, whether then owned or
thereafter acquired, with certain exceptions and reservations
fully set forth in the Indenture, were given, granted, bargained,
sold, transferred, assigned, pledged, mortgaged and conveyed to
the Trustee, its successors and assigns, in trust upon the terms
and conditions set forth therein to secure bonds of the Company
issued and to be issued thereunder (the "Bonds"), and for other
purposes more particularly specified therein; and
WHEREAS, in order to comply with the provisions of sections
2.02, 3.01(g) and 4.07 of the Indenture, it is desirable and the
Company is required and has duly and lawfully determined, at the
request of the Trustee, to execute and deliver this instrument
for the purpose of complying with said provisions; and
WHEREAS, for the protection of the holders of the Bonds it
is desirable to add certain covenants to the covenants of the
Indenture; and;
WHEREAS, it is necessary, desirable and not inconsistent
with the security and protection intended to be conferred upon
the Trustee and the holders of the Bonds to make certain
provisions in this instrument in regard to matters arising under
the Indenture; and
WHEREAS, Bonds in the principal amounts specified below have
heretofore been issued under and in accordance with the terms of
the Indenture (or Prior Indentures, as defined in the Indenture)
as separate series described or designated as hereinafter
specified, of which the respective amounts specified below were
outstanding on July 31, 1995:
Principal Amount Principal
Authorized and Amount
Designation Issued Outstanding
First Mortgage Bonds, $12,000,000 $ 6,000,000
Series CD
First Mortgage Bonds, $15,000,000 $15,000,000
Series CE
First Mortgage Bonds, $20,000,000 $16,363,636
Series CF
First Mortgage Bonds, $20,000,000 $20,000,000
Series CG
First Mortgage Bonds, $25,000,000 $25,000,000
Series CH
and the Company now proposes to issue up to $75,000,000 in
aggregate principal amount of additional First Mortgage Bonds
designated Secured Medium Term Notes, Series A (herein referred
to as the "Series A Notes") under the Indenture, which Bonds are
to be further designated and described, as to dates, maturities,
interest rates, sinking funds, denominations and redemption and
call provisions, in such Series A Notes which the Company may
issue from time to time, each in the form hereinafter set forth
(and the Trustee hereby confirms its approval, previously given
prior to the certification of any of said additional Bonds, of
the form and designation thereof so specified); and
WHEREAS, this Supplemental Indenture has been duly
authorized by resolution of the Board of Directors of the
Company, as required by section 3.01(b) of the Indenture, and the
use of terms and expressions herein is in accordance with
definitions, uses and constructions contained in the Indenture;
and
WHEREAS, the Series A Notes to be issued under the Indenture
are to be substantially in the following form:
(Form of Series A Note)
No. ____-____ COLONIAL GAS COMPANY $____________
Secured Medium Term Note, Series A
Due ________ ___, _____
COLONIAL GAS COMPANY, a Massachusetts corporation
(hereinafter, with its successors and assigns, as defined in the
Indenture mentioned below, generally called the "Company"), for
value received, hereby promises to pay to _____________________
or registered assigns, on ________ ___, _____ (or earlier as
hereinafter referred to), the principal sum of
_____________________________________ dollars ($__________) in
lawful money of the United States of America, and to pay interest
thereon (computed on the basis of a 360-day year of twelve 30-day
months), in like lawful money, from the date hereof, at the rate
of ______________________ percent (______%) per annum,
semi-annually on February 15 and August 15 of each year and at
maturity, until the principal hereof shall become due and
payable. The Company agrees to pay on demand interest on any
overdue principal (including any overdue prepayment of principal)
and premium, if any, at the rate of ____________________ percent
(_____%) per annum and, to the extent permitted by law, interest
on any overdue installment of interest at the rate at which such
overdue installment was computed according to the terms hereof.
The principal of, premium, if any, and interest hereof and hereon
will be paid at the principal corporate trust office in Canton,
Massachusetts of The First National Bank of Boston (hereinafter,
with its successors and predecessors as defined in said
Indenture, generally called the "Trustee") or at the principal
office of its successor in the trust created by said Indenture
or, at the option of the registered owner hereof, at such other
office or agency of the Trustee or of the Company maintained by
it for the purpose in the Burough of Manhattan, The City of New
York, New York, or such other place as may be designated for the
purpose pursuant to the provisions of said Indenture.
This Note is one of a duly authorized issue of First
Mortgage Bonds of the Company (the "Bonds") issued or to be
issued in one or more series, the series of which this Note is
one being designated Secured Medium Term Notes, Series A (herein
generally referred to as the "Series A Notes"). The Series A
Notes may be issued from time to time in various principal
amounts and may mature at different times, may bear interest at
different rates, may have different sinking fund provisions, may
be in different denominations, may be subject to different
redemption or call provisions and may otherwise vary.
This Note is a Global Note within the
meaning of the Indenture and is registered in the name of The
Depository Trust Company, or its nominee, as depositary. This
Global Note is exchangeable for Series A Notes, registered in
the name of a person other than such depositary or its nominee
only in the limited circumstances described in the Indenture,
and no transfer of this Note (other than the transfer of this
Note as a whole by such depositary to its nominee or by such
nominee to such depositary or another nominee of such depositary)
may be registered except in such limited circumstances.
Unless this Note is presented by an authorized representative of
The Depository Trust Company to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to
Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
All Bonds of all series and forms are issued or to be issued
under and secured by a certain Second Amended and Restated First
Mortgage Indenture dated as of June 15, 1992, as supplemented by
the First and Second Supplemental Indentures, inclusive, executed
counterparts of which are on file with the Trustee and may be
examined at its principal corporate trust office in Canton,
Massachusetts. Said Second Amended and Restated First Mortgage
Indenture, as amended and so supplemented, is herein generally
called the Indenture. Reference is made to the Indenture for a
description of Bonds outstanding under the Indenture as of
particular dates, including Prior Series Bonds as defined in the
Indenture, for a description of the property mortgaged and
pledged to the Trustee as security for Bonds, for a statement of
the nature and extent of the security, the terms and conditions
upon which Bonds have been, are or are to be issued and secured,
the rights and remedies under the Indenture of the holders of all
of said Bonds, and the rights and obligations under the Indenture
of the Company and of the Trustee, and for the definitions of
certain terms used but not defined in this Note; but neither the
foregoing reference to the Indenture, nor any provision of this
Note or of the Indenture, shall affect or impair the obligation
of the Company, which is absolute, unconditional and unalterable,
to pay, at the stated or accelerated maturities herein provided,
the principal of and premium, if any, and interest on this Note
as herein provided. By the terms of the Indenture, the Bonds to
be secured thereby are issuable to an unlimited (except as
provided in said Indenture) aggregate principal amount, in series
which may vary as to date, amount, date of maturity, rate of
interest and in other respects as in the Indenture provided.
In certain events, on the conditions, in the manner, to the
extent and with the effect set forth in the Indenture,
(1) the principal of this Note may be declared and/or
may become due and payable before the stated maturity
hereof, together with the interest accrued hereon;
(2) the Company and the Trustee may make modifications
or alterations of the provisions of the Indenture and of
this Note with the consent of the holders of not less than
66 2/3% in principal amount of the Bonds outstanding under the
Indenture, including not less than 66 2/3% in principal amount
of the Bonds of any series or sub-series affected in any
manner or to any extent differing from that in or to which
the Bonds of any other series or sub-series are affected;
provided, however, that no such alteration or modification
shall, without the consent of the registered owner of this
Note, (a) impair the obligation of the Company in respect of
the principal of or premium, if any, or interest on this
Note, or extend the maturity hereof or change the rate or
extend the time of payment of interest hereon or modify the
terms of payment of such principal, premium, if any, or
interest, or (b) permit the creation of any lien prior to or
on a parity with the lien of the Indenture, except as
expressly authorized by the Indenture, or (c) alter the
percentages of the principal amount of Bonds required to
declare the principal of and interest accrued on all Bonds
outstanding immediately due and payable as a result of a
default under the Indenture or to annul such declaration, or
(d) reduce the percentage of the principal amount of Bonds
with the consent of the holders of which modifications or
alterations may be made as aforesaid;
(3) the holders of not less than 66 2/3% in principal
amount of the Bonds at the time outstanding under the
Indenture, including not less than 66 2/3% in principal amount
of the Bonds of any series or sub-series affected by the
waiver in a manner different from that of any other series
or sub-series, may waive any existing default under the
Indenture and the consequences of any such default, except a
default in the payment of the principal of, premium, if any,
or interest on any of the Bonds, and except a default
arising from the creation of any lien prior to or on a
parity with the lien of the Indenture;
(4) upon payment of charges and compliance with other
conditions as provided in the Indenture, the Series A Notes
are exchangeable, at the principal corporate trust office of
the Trustee and at such other offices or agencies of the
Trustee or of the Company as may be designated for the
purpose, for like aggregate principal amounts of Series A
Notes in authorized denominations; and this Note is
transferable on books kept by the Company at said office of
the Trustee and at such other offices or agencies, upon
surrender and cancellation hereof at any such office or
agency, duly endorsed or accompanied by a duly executed
instrument of transfer, and thereupon a new fully registered
Series A Note or Notes for a like aggregate principal amount
will be issued to the transferee or transferees in exchange
for this Note; and
(5) the Series A Notes (i) are subject to redemption
in whole or in part at any time prior to maturity if through
the application of eminent domain moneys or the proceeds of
insurance arising from loss or casualty, as specified in the
Indenture, at the principal amount thereof, and (ii) to the
extent specified in the attached table, if any, are subject
to redemption, in whole or in part, at any time prior to
maturity, at the option of the Company, on and after the
initial redemption date specified in the attached table, at
the applicable redemption prices (expressed as a percentage
of the principal amount) set forth in the attached table,
together in each case with accrued interest to the date
fixed for redemption. Any redemptions permitted or required
under the Indenture, other than those described in (i), will
be deemed optional redemptions.
At least thirty (30) but not more than sixty (60) days prior
to the date on which any Series A Note is to be redeemed as
aforesaid, written notice of such redemption shall be given by
registered mail to the registered owners of the Series A Notes
all or any portions of which are to be redeemed. If this Note is
called in whole or in part, after provision has been duly made
for notice of such call and after deposit shall have been made of
the principal, premium, if any, and interest to the date fixed
for redemption and such amounts are immediately available on the
date fixed for redemption to the holders of the Series A Notes to
be redeemed on surrender thereof, this Note, or such called part
of the principal amount hereof, shall cease to be secured by the
lien of the Indenture, no interest shall accrue on this Note or
such called part hereof on and after the date fixed for
redemption, and the Company after said date fixed for redemption
shall be under no further liability in respect of the principal
of or premium, if any, or interest on this Note or such called
part hereof (except as expressly provided in the Indenture); and
if less than the whole principal amount hereof shall be so
called, the registered owner hereof shall be entitled, in
addition to the sums payable on account of the part called, to
receive, without expense to such owner, on surrender of this Note
duly endorsed or accompanied by a duly executed instrument of
transfer, one or more Series A Notes for an aggregate principal
amount equal to that part of the principal amount hereof not then
called and paid, or to present this Note for the notation hereon
of the payment of the part of the principal amount then called
and paid.
This Note is not subject to redemption under any provision
of the Indenture, or otherwise, except as expressly referenced
above.
The Company, the Trustee, any paying agent, any bond
registrar and any other person may treat the registered owner
hereof as the absolute owner hereof for the purpose of receiving
payment of the principal of and premium, if any, and interest on
this Note and for all other purposes, and neither the Company nor
the Trustee, nor any paying agent or bond registrar, shall be
affected by any notice or knowledge to the contrary, whether
payments on this Note shall be overdue or not. The Company, and
every successive owner and assignee of this Note, by accepting
and holding the same, consents and agrees to the foregoing
provisions, and each invites the others and all persons to rely
thereon.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this Note against any
incorporator, stockholder, director, officer or agent, past,
present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company
or any such predecessor or successor corporation, under any rule
of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
stockholders, directors, officers and agents being released by
the holder hereof by the acceptance of this Note and being
likewise waived and released as provided in the Indenture,
provided that nothing herein or in the Indenture shall prevent
enforcement of obligations on stock not fully paid up.
This Note shall take effect as a sealed instrument.
This Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate hereon shall have been signed by
the Trustee.
IN WITNESS WHEREOF, Colonial Gas Company has caused this
Note to be executed under its corporate seal and issued by its
duly authorized officers, all as of _________________ __, 19__.
COLONIAL GAS COMPANY
By
By
Attest:
(Form of Trustee's Certificate)
This is one of the Series A Notes referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By
Authorized Officer
(Form of Endorsement)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ____________________ (whose Taxpayer
Identification Number is ____________________) the within Note,
and all rights thereunder, hereby irrevocably constituting and
appointing _________________ attorney to transfer said Note 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 Note in
every particular, without alteration or enlargement or any change
whatever.
[Insert Redemption Table, if applicable]
NOW, THEREFORE, THIS INSTRUMENT (BEING THE SECOND
SUPPLEMENTAL INDENTURE TO THE INDENTURE) WITNESSETH that, in
consideration of the premises, and of the acceptance and purchase
of the Series A Notes by the holders thereof, and of the sum of
$1.00 duly paid by the Trustee to the Company, and of other good
and valuable consideration, the receipt of which is hereby
acknowledged, and in confirmation of and supplementing and
amending the Indenture and in performance of and compliance with
the provisions thereof, said Colonial Gas Company has given,
granted, bargained, sold, warranted, pledged, assigned,
transferred, mortgaged and conveyed, and by these presents does
give, grant, bargain, sell, transfer, warrant, assign, pledge,
mortgage, convey and confirm unto The First National Bank of
Boston, as Trustee, as provided in the Indenture, and its
successor or successors in the trust thereby and hereby created,
and its and their assigns, (a) all and singular the property, and
rights and interests in property, described (directly or by
cross-reference to the Prior Indentures) in the Indenture and
thereby conveyed, pledged, assigned, transferred and mortgaged,
or intended so to be (said descriptions being hereby made a part
hereof to the same extent as if set forth herein at length),
whether then or now owned or thereafter or hereafter acquired;
(b) all of the real estate and personal property owned by the
Company located respectively in the City of Lowell, and in the
Towns of Chelmsford, Tewksbury, Dracut, Billerica, Westford,
Tyngsboro, Dunstable, Pepperell, North Reading, Littleton,
Wilmington, Wareham, Bourne (which includes the village of
Buzzards Bay), Mashpee, Falmouth, Barnstable (which includes the
village of Hyannis), Yarmouth, Dennis, Harwich, Chatham,
Sandwich, Brewster, Orleans and Eastham, all in Massachusetts,
including (without in any way limiting the generality of the
foregoing) the parcel or parcels of real estate, if any,
described in Exhibit A hereto; and (c) also without limiting the
generality of the foregoing, all the right, title and interest of
the Company in and to the franchises, rights, titles, interests,
easements and all other real and personal property acquired or
constructed by the Company since the execution and delivery of
the Indenture as fully as if set forth herein at length; except
such of said properties or interests therein described above in
(a) to (c), inclusive, as may have been released by the Trustee
or sold or disposed of in whole or in part as permitted by the
Indenture.
SUBJECT, HOWEVER, as to all of the foregoing, to the
specific rights, privileges, liens, encumbrances, restrictions,
conditions, limitations, covenants, interests, reservations,
exceptions and otherwise as provided (directly or by cross-
reference to the Prior Indentures) in the Indenture and in the
descriptions (directly or by cross-reference to the Prior
Indentures) in the Indenture and in the deeds or grants referred
to therein (or in said Prior Indentures).
BUT SPECIFICALLY RESERVING AND EXCEPTING (as the same were
reserved and excepted from the lien of the Indenture) from this
instrument and the grant, conveyance, mortgage, transfer and
assignment herein contained all right, title and interest of the
Company, now owned or hereafter acquired, in and to the
properties and rights described (directly or by cross-reference
to the Prior Indentures) on page 11 of the Indenture as
specifically reserved and excepted.
PROVIDED, HOWEVER, that if an event of default occurs and
the Trustee or any receiver or trustee appointed for the purpose
shall enter upon and take possession of the trust estate, the
Trustee or such receiver or trustee may, to the extent permitted
by law, take possession of the said specifically excepted
property and use it as if such property were part of the trust
estate, unless and until such default shall be remedied and
possession of the trust estate restored to the Company.
TO HAVE AND TO HOLD all such property, rights, title and
interests unto The First National Bank of Boston, Trustee
hereunder, its successors in the trust created by the Indenture,
and its and their assigns, to its and their own use and behoof
forever;
BUT IN TRUST, NEVERTHELESS, under and subject to the
provisions and conditions, with all the powers and authority and
for the trusts and purposes set forth in the Indenture, and (1)
for the equal pro rata benefit and security (except as provided
in sections 2.09 and 2.10 of the Indenture, and except insofar as
a sinking, improvement or analogous fund or funds, established in
accordance with the provisions of the Indenture for any series of
Bonds, may afford particular security for Bonds of one or more
series or sub-series, and except independent security as provided
in section 2.02 of the Indenture) of the holders of such of said
series of Bonds as are now outstanding and $75,000,000 in
aggregate principal amount of Series A Notes for the issue of
which provision is made herein, and of the holders of all the
Bonds from time to time certified, issued and outstanding under
the Indenture, and the bearers of the coupons thereto
appertaining, without (except as aforesaid) any preference,
priority or distinction whatever of any Bond or coupon over any
other Bond or coupon by reason of priority in the series or in
the issue, sale or negotiation thereof, or otherwise, and (2)
subject to the covenants, agreements, rights, privileges,
immunities and duties set forth in the Indenture and this
instrument.
The Company hereby declares that it holds and will hold and
apply all property described (directly or by cross-reference to
the Prior Indentures) on page 11 of the Indenture as specifically
reserved and excepted, upon the trusts of the Indenture set forth
and as the Trustee (or any purchaser thereof upon any sale
thereof hereunder) shall for such purpose direct, from time to
time, to the fullest extent permitted by law or in equity, as
fully as if the same could be and had been granted, conveyed,
mortgaged, transferred and assigned to and vested in the Trustee
by the Indenture.
ARTICLE I
Series A Notes
Section 1.01. General Terms of Series A Notes. The second
series of Bonds to be issued under the Indenture shall be known
as "Secured Medium Term Notes, Series A." Such Series A Notes
shall be limited in aggregate principal amount to $75,000,000.
The Series A Notes shall be issued from time to time as fully
registered Bonds, without coupons, and no coupon bonds shall be
issued, whether upon original issue or upon transfers or
exchanges. The Series A Notes shall be substantially in the form
hereinbefore recited and, in each case, shall recite the
principal amount, interest rate, maturity, redemption or call
provisions and other provisions thereof, which may vary as among
the Series A Notes. The Series A Notes may be issued in the
denomination of one thousand dollars ($1,000) each or any
multiple thereof and, without regard to the denomination thereof,
shall be numbered consecutively. Each Series A Note shall be
dated as of the day of certification, except that Series A Notes
issued upon transfers and exchanges of Series A Notes and upon
exchanges of temporary Bonds for such Series A Notes shall be
dated so that no gain or loss of interest shall result from such
transfer or exchange. The Series A Notes shall be due and
payable on such dates, and shall bear interest at such rates (in
each case computed on the basis of a 360-day year of twelve
30-day months from the date thereof) as may be specified therein
from the date of issuance. Interest thereon shall be payable
semi-annually, on February 15 and August 15 in each year, and at
maturity, until the principal thereof shall become due and
payable. The Company also agrees to pay on demand interest on
any overdue principal (including any overdue prepayment of
principal) and premium, if any, at a rate equal to the interest
rate of the relevant Series A Note, plus one percent (1.00%) per
annum and, to the extent permitted by law, interest on any
overdue installment of interest at the rate at which such overdue
installment of interest was calculated according to the terms of
the Series A Notes. The Series A Notes shall be payable as to
principal, premium, if any, and interest at, unless the holder of
any such Bond and the Company shall have otherwise agreed in
writing, the principal corporate trust office of the Trustee in
Canton, Massachusetts, or at the principal office of its
successor in trust created by the Indenture or, at the option of
the registered owner thereof, at such other office or agency of
the Trustee or of the Company maintained by it for the purpose
in the Burough of Manhattan, The City of New York, New York, or
such other place as may be designated for the
purpose pursuant to the provisions hereof, in lawful money of
the United States of America.
The Series A Notes shall be exchangeable by the holders, and
may be transferred, in each case as provided in section 2.06 of
the Indenture, all upon payment of charges and otherwise as
provided in the Indenture.
The Series A Notes are not subject to redemption, at the
option of the Company or otherwise, by operation of the
provisions of the Indenture, whether under sections 7.02 and 7.03
of the Indenture, or otherwise, except as specifically set forth
in the form of such Notes.
Series A Notes at any time outstanding may be called for
redemption in the manner provided in Article 5 of the Indenture
and section 1.03 hereof (i) in whole or in part, at any time
prior to maturity, at the option of the Company, to the extent,
under the provisions of and at the redemption prices specified in
the resolution of the Company providing for the issue of such
Series A Notes (the "Resolution") and set forth in the related
Series A Notes or (ii) in whole or in part at
any time prior to maturity through the application of eminent
domain moneys (as hereinafter defined) or the proceeds of
insurance arising from loss or casualty under the provisions of
the Indenture at the principal amount thereof; together in each
case with unpaid interest accrued to the date fixed for
redemption. Any redemptions permitted or required under the
Indenture, other than those described in (ii) above, shall be
deemed optional redemptions. The term "eminent domain moneys"
shall mean the net proceeds of the taking of property included in
the trust estate by exercise of the power of eminent domain, or
by similar right or power, or the purchase or designation of the
purchaser of, or ordering of the sale of, all or any part of such
property by the exercise of any right of any governmental
authority, or the sale or conveyance in lieu and in reasonable
anticipation of any such event (provided that, in case of a sale
or conveyance in anticipation of any such event, "eminent domain
moneys" shall include, in addition to said net proceeds, the
excess of the fair value over the net proceeds, if the fair
value, as evidenced by an engineer's certificate, of the property
sold or conveyed, is greater than such net proceeds), together
with all net sums payable for any damage to any fixed assets
embraced in the trust estate by or in connection with any such
taking, sale or conveyance.
Section 1.02. Payment of Interest. Whenever Series A Notes
are called for redemption, the Company shall, in each case, prior
to the date fixed for redemption thereof, pay to the Trustee in
cash all unpaid interest accrued on such Series A Notes to said
date fixed for redemption.
Section 1.03. Procedure for Redemption. Except as otherwise
provided in this section 1.03 or the Resolution, the procedure
for redemption of Series A Notes shall be that specified in
sections 5.02, 5.03 and 5.04 of the Indenture.
Notice of redemption of any Series A Notes shall be given by
the Company as provided in sections 5.02 and 5.03 of the
Indenture, except that, unless otherwise provided in the
Resolution, notice need be given only by mail and not by
publication. Any such notice of redemption shall be mailed not
less than thirty (30) nor more than sixty (60) days prior to the
date on which the proposed redemption is to take place. The
mailing of such notice shall be a condition precedent to
redemption, provided that any notice which is so mailed shall be
conclusively presumed to have been duly given, whether or not the
holders receive such notice, and failure to give such notice by
mail, or any defect in such notice, to the holder of any such
Series A Note designated for redemption, in whole or in part,
shall not affect the validity of the redemption of any other such
Series A Note.
Section 1.04. Global Notes. Notwithstanding any other
provisions of this Supplemental Indenture, the Series A Notes
issued by the Company and authenticated and delivered by the
Trustee under this Supplemental Indenture shall be issued as
definitive, fully-registered global notes in the name of Cede
& Co., as nominee of The Depository Trust Company ("DTC"), in
the aggregate principal amount of all Series A Notes issued
hereunder.
The Company and the Trustee may treat DTC as, and shall deem
DTC to be, the absolute owner of the Series A Notes evidenced by
the global notes for the purpose of payment of principal of,
premium, if any, and interest on such Series A Notes, for the
purpose of all other matters with respect to such Series A Notes,
for the purpose of registering transfers with respect to Series A
Notes, and for all other purposes whatsoever. Neither the
Company nor the Trustee shall have any responsibility or
obligation to any of DTC's direct or indirect participants.
Without limiting the immediately preceding sentence, neither the
Company nor the Trustee shall have any responsibility or
obligation with respect to (i) the accuracy of the records of DTC
or its nominee or any of its direct or indirect participants with
respect to any ownership interest in the global notes, (ii) the
delivery to any of DTC's direct or indirect participants or any
other person, other than DTC, of any notice with respect to the
Series A Notes evidenced by the global notes, (iii) the payment
to any of DTC's direct or indirect participants or any other
person, other than DTC, of any amount with respect to the
principal of, premium, if any, or interest on the Series A Notes
evidenced by the global notes, and (iv) the failure of DTC to
provide any information or notification on behalf of any of DTC's
direct or indirect participants. The Trustee shall pay all
principal of and premium, if any, and interest on the Series A Notes
only to or upon the order of DTC, and all such payments shall be
valid and effective to fully satisfy the Company's obligations
with respect to the principal of and premium, if any, and
interest on such Series A Notes to the extent so paid.
Notwithstanding the provisions of the Indenture to the contrary
(including, without limitation, place of payment, surrender of
the Series A Notes, registration and transfer thereof and
authorized denominations), as long as any of the Series A Notes
are in the form of a global note, full effect shall be given to
the procedures and practices of DTC with respect thereto, and the
Trustee shall comply therewith.
In the event that (i) DTC (or any successor securities
depositary) is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, (ii) the Company determines that the
continuation of the system of book-entry only transfers through
DTC (or a successor securities depositary) is not in the best
interests of the beneficial owners of the Series A Notes or is
burdensome to the Company, or (iii) a default under the Indenture
has occurred and is continuing, the Company will notify DTC and the
Trustee, whereupon DTC or the Trustee will notify DTC
participants of the availability through DTC of certificates for
the Series A Notes. In such event, the Company and the Trustee
shall execute and deliver a supplemental indenture to add such
provisions and to make such modifications, including in the
form of Series A Note, as may be necessary or appropriate to provide
for the issuance of the Series A Notes in certificated form and
the Company shall issue and the Trustee shall transfer and
exchange certificates for the Series A Notes as requested by DTC
in denominations as prescribed by Section 1.01 hereof, to the
identifiable beneficial owners in replacement of such beneficial
owners' respective beneficial interests in the Series A Notes.
ARTICLE II
Miscellaneous
Section 2.01. Certain Covenants. For purposes of Sections
3.01(h) and 4.22 of the Indenture, and not for any other purpose,
the Series A Notes are hereby designated as Prior Series Bonds.
Section 2.02. Miscellaneous Provisions. The Trustee shall
be entitled to, may exercise and shall be protected by, where and
to the full extent that the same are applicable, all the rights,
powers, privileges, immunities and exemptions provided in the
Indenture, as if the provisions concerning the same were
incorporated herein at length. The Trustee under the Indenture
shall ex officio be Trustee hereunder. The remedies and
provisions of the Indenture, applicable in case of any default by
the Company thereunder, are hereby adopted and made applicable in
case of any default with respect to the properties included
herein and, without limitation of the generality of the
foregoing, there are hereby conferred upon the Trustee the same
powers of sale and other powers over the properties described
herein as are expressed to be conferred by the Indenture.
If, pursuant to Article I of this Supplemental Indenture or
any similar provision of any other supplemental indenture, the
Trustee makes payment of the redemption price of all or a portion
of any registered Series A Note directly to the registered owner
thereof without presentation or surrender thereof, the Trustee
shall have no responsibility to ascertain whether such registered
owner carries out its agreement not to dispose of such Note
without prior presentation or surrender thereof to the Trustee as
provided in said Article I or similar provision, and the Trustee
shall not be liable for any claim if arising out of or because of
the failure of such registered owner to carry out its said
agreement.
The recitals in this Supplemental Indenture shall be taken
as recitals by the Company alone, and shall not be considered as
made by or as imposing any obligation or liability upon the
Trustee, nor shall the Trustee be held responsible for the
legality or validity of this Supplemental Indenture, and the
Trustee makes no covenants or representations, and shall not be
responsible, as to or for the effect, authorization, execution,
delivery or recording of this Supplemental Indenture, except as
expressly set forth in the Indenture. The Trustee shall not be
taken impliedly to waive by this Supplemental Indenture any right
it would otherwise have. As provided in the Indenture, this
Supplemental Indenture shall hereafter form a part of the
Indenture.
The date of this Supplemental Indenture is intended as and
for a date for reference and for identification, the actual time
of the execution hereof being the date set forth in the
testimonium clause hereof.
This Supplemental Indenture shall become void when the
Indenture shall be void.
If any provision of this Supplemental Indenture limits,
qualifies or conflicts with the duties imposed by operation of
Section 318(c) of the Trust Indenture Act of 1939, as amended,
such imposed duties shall control.
This Supplemental Indenture may be simultaneously executed
in any number of counterparts, each of which shall be deemed an
original; and all said counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument,
which shall for all purposes be sufficiently evidenced by any
such original counterpart.
IN WITNESS WHEREOF, Colonial Gas Company has caused this
Supplemental Indenture to be executed, and its corporate seal to
be hereto affixed, by its officers thereunto duly authorized, and
The First National Bank of Boston has caused this Supplemental
Indenture to be executed, and its corporate seal to be hereto
affixed, by its officers thereunto duly authorized, all as of the
day and year first above written but actually on the 27th day of
September, 1995.
COLONIAL GAS COMPANY
[Seal]
By Dennis W. Carroll
Vice President
By Dennis W. Carroll
Treasurer
Attest:
June T. Abreu
Assistant Clerk
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
[Seal]
By James E. Mogavero
Authorized Officer
Attest:
Illegible
Clerk
The Commonwealth of Massachusetts )
) ss.:
County of Suffolk )
On this 27th day of September, 1995 before me personally
appeared Dennis W. Carroll and June T. Abreu, to me personally
known, who, being by me duly sworn, did say that they are the
Vice President & Treasurer and the Assistant Clerk, respectively,
of Colonial Gas Company, that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed by them on behalf of said
corporation by authority of its Board of Directors; and the said
Dennis W. Carroll and June T. Abreu, acknowledged said instrument
to be the free act and deed of said corporation.
[Seal]
Timothy A. Clark
Notary Public
My Commission Expires:
10/06/2000
The Commonwealth of Massachusetts )
) ss.:
County of Suffolk )
On this 26th day of September, 1995 before me personally
appeared James E. Mogavero, to me
personally known, who, being by me duly sworn, did say that he is
an Authorized Officer of The First National Bank of Boston, that
the seal affixed to the foregoing instrument is the corporate seal
of said bank, and that said instrument was signed and sealed by them
on behalf of said bank, by authority of its Board of Directors; and
the said James E. Mogavero, acknowledged said instrument to be the
free act and deed of said trust company, as trustee.
[Seal]
Ralph E. Jones
Notary Public
My Commission Expires:
January 18, 2002
[END OF EXHIBIT 4c TO COLONIAL GAS COMPANY
FORM 10-K FOR YEAR ENDED DECEMBER 31, 1995]