-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FLf7cji/bTGJKVwHpQETgWgBXx/udp6zhilAZ1mn29P8RG4ar1IKLaDPBMDcHPUK QAJWMC/KvY0mBBqXaVLOdg== 0000950135-96-004351.txt : 19961028 0000950135-96-004351.hdr.sgml : 19961028 ACCESSION NUMBER: 0000950135-96-004351 CONFORMED SUBMISSION TYPE: S-3D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19961011 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: FALL RIVER GAS CO CENTRAL INDEX KEY: 0000034371 STANDARD INDUSTRIAL CLASSIFICATION: 4924 IRS NUMBER: 041298780 STATE OF INCORPORATION: MA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3D SEC ACT: 1933 Act SEC FILE NUMBER: 333-13995 FILM NUMBER: 96642707 BUSINESS ADDRESS: STREET 1: 155 N MAIN ST STREET 2: P O BOX 911 CITY: FALL RIVER STATE: MA ZIP: 02722-0911 BUSINESS PHONE: 5086757811 MAIL ADDRESS: STREET 2: 155 NO MAIN ST CITY: FALL RIVER STATE: MA ZIP: 02720 S-3 1 FALL RIVER GAS COMPANY FORM S-3 1 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- FALL RIVER GAS COMPANY (Exact name of registrant as specified in its charter) MASSACHUSETTS 04-1298780 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 155 NORTH MAIN STREET 02722 FALL RIVER, MASSACHUSETTS (Zip Code) (Address of principal executive office) 508-675-7811 (Registrant's telephone number, including area code) -------------- ERIC J. KRATHWOHL, ESQ. RICH, MAY, BILODEAU & FLAHERTY, P.C. 294 WASHINGTON STREET, BOSTON, MA 02108 (617) 482-1360 (Name, address and telephone number, including area code, of agent for service) -------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement. -------------- The only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans. CALCULATION OF REGISTRATION FEE
============================================================================================= Title of each class Proposed maximum Proposed maximum of securities to be Amount to be offering price aggregate Amount of registered registered per share* offering price registration fee - - --------------------------------------------------------------------------------------------- Common Stock, $0.83-1/3 par value 250,000 shares $19.00 $4,750,000 $1,637.93 ============================================================================================= * Used only for the purpose of calculating the amount of the registration fee pursuant to Rule 457(b), based upon the average of the reported bid and asked prices of such securities on October 8, 1996.
=============================================================================== 2 PROSPECTUS - - ---------- FALL RIVER GAS COMPANY 155 NORTH MAIN STREET FALL RIVER, MASSACHUSETTS 02722 (508-675-7811) SHARE OWNER DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN 250,000 SHARES COMMON STOCK, $0.83 1/3 PAR VALUE The Share Owner Dividend Reinvestment and Stock Purchase Plan (the "Plan") of Fall River Gas Company (the "Company") provides holders of record of common stock of the Company a simple and convenient method of investing in additional shares of common stock of the Company. Participants in the Plan may: - have cash dividends on all or a portion of their shares automatically reinvested or - invest by making optional cash payments at any time in any amount from a minimum $15.00 in any calendar month to a maximum of $5,000 in any calendar quarter; or - invest both their cash dividends and such optional cash payments. The price of the shares of common stock of the Company purchased by participants in the Plan with reinvested dividends or optional cash payments will be the average of the bid and asked price of the Company's common stock in the over-the-counter market during the five trading days ending on the day of purchase. No shares will be available for purchase under the Plan at less than par value. No specific expenses, including but not limited to underwriting discounts or commissions, are payable by the Company in connection with the operation of the Plan during the next year. The Prospectus relates to authorized and unissued shares of common stock of the Company registered under the Plan. It is advisable that this Prospectus be retained for future reference. ----------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------ THE DATE OF THIS PROSPECTUS IS OCTOBER 11, 1996. 3 No dealer, salesman or other person has been authorized to give any information or to make any representation other than those contained in this Prospectus in connection with the offer contained herein and, if given or made, such information or representation must not be relied upon. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any of the securities offered hereby in any jurisdiction. Neither the delivery of this Prospectus nor any sale made hereunder shall under any circumstances create any implication that there has been no change in the affairs of the Company since the date hereof. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934 and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). Information with regard to prior years concerning directors and officers, their remuneration, the principal holders of securities of the Company, and any material interest of such persons in transactions with the Company is disclosed in the proxy statements distributed to stockholders of the Company and filed with the Commission. Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; and at the Commission's Regional Offices in Chicago (500 West Madison Street, Suite 1400, Chicago, Illinois 60661); and in New York (7 World Trade Center, Suite 1300, New York, New York 10048). Copies of such materials can be obtained at prescribed rates from the Public Reference Section of the Commission at the Washington, D.C. address given above. The Commission maintains a Web site that contains reports, proxy and information statements and other information regarding Registrants that file electronically with the Commission (including the Company). The address of such Web site is http://www.sec.gov. Additional updating information with respect to the securities and plan covered herein may be provided in the future to the plan participants by means of appendices to the prospectus. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed with the Commission pursuant to the Securities Exchange Act of 1934 are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended September 30, 1995 filed pursuant to the Securities Exchange Act of 1934 which contains, either directly or by incorporation by reference, certified financial statements for the Company's latest fiscal year. (b) The Company's definitive proxy statement, dated December 21, 1995 in connection with the Company's Annual Meeting of Shareholders held on February 8, 1996. 2 4 (c) The Company's Quarterly Report on Form 10-Q for the quarters ended December 31, 1995, March 31, 1996 and June 30, 1996 filed pursuant to the Securities Exchange Act of 1934. All reports and other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. The Company hereby undertakes to provide, without charge, to each person to whom this Prospectus is delivered, on the oral or written request of any such person, a copy of any or all of the documents which have been or may be incorporated herein by reference (other than exhibits to such documents). Requests should be directed to Peter H. Thanas, Sr. Vice President and Treasurer, Fall River Gas Company, 155 North Main Street, Fall River, Massachusetts 02722 - Telephone (508) 675-7811. THE COMPANY Fall River Gas Company (the "Company") is a public utility incorporated in Massachusetts in 1880. It is engaged primarily in the distribution and sale of natural gas for residential, commercial and industrial use and transportation of natural gas for industrial use, and also leases gas-burning equipment through its wholly-owned subsidiary Fall River Gas Appliance Company. The Company serves communities, including the city of Fall River, the towns of Somerset, Swansea and Westport. The Company's service territory is primarily urban in character, with residential, commercial and industrial customers. USE OF PROCEEDS The Company is unable to predict either the number of shares of common stock that will ultimately be sold pursuant to the Plan or the prices at which such shares will be sold. The proceeds from any such sales will be used to finance additions to the Company's property, plant and equipment in the ordinary course of business or to repay temporary indebtedness incurred to finance such additions. DESCRIPTION OF THE PLAN The following is a question and answer statement of the provisions of the Plan. PURPOSE 1. WHAT IS THE PURPOSE OF THE PLAN? 3 5 The purpose of the Plan is to provide holders of record of common stock of the Company a simple convenient method of investing cash dividends and/or optional cash payments in additional shares of common stock of the Company. Since such shares will be purchased directly from the Company, the Company will receive funds needed for its corporate purposes (see "Use of Proceeds" herein). ADVANTAGES 2. WHAT ARE THE ADVANTAGES OF THE PLAN? Participants in the Plan may: (i) have cash dividends on all of their common shares automatically reinvested; (ii) have cash dividends on less than all of their common shares automatically reinvested; (iii) invest by making optional cash payments at any time in any amount from a minimum of $15.00 in any calendar month to a maximum of $5,000 in any calendar quarter, whether or not dividends are being invested. The shares of common stock purchased upon behalf of participants in the Plan generally will be purchased at the discounted price, which price and the restrictions thereon, are more fully explained in the answer to Question 11 of this Prospectus. No brokerage commissions, service charges, or other expenses are paid by participants in connection with purchases under the Plan. Since fractional shares, as well as full shares, may be credited to participants' accounts, full investment of funds is possible. In addition, dividends in respect of such factional shares, as well as full shares, will be credited to participants' accounts. Participants avoid the necessity for safekeeping of stock certificates for shares credited to their accounts. Regular statements of account simplify record keeping. PLAN ADMINISTRATION 3. WHO ADMINISTERS THE PLAN FOR PARTICIPANT? The Plan is administered by the Share Owner Dividend Reinvestment and Stock Purchase Plan Committee (the "Committee") appointed by the Board of Directors of the Company. The Committee shall determine the rights of the participants in accordance with the Plan and interpret the Plan as it deems necessary or desirable in connection with its operation. The Committee may adopt such rules and regulations as it deems appropriate to promote the objective of the Plan. All correspondence with regard to the Plan, except communications otherwise specified herein to be directed to the Agent referred to in Question 4, should be addressed to Fall River Gas Company. Attn: Secretary of the Share Owner Dividend Reinvestment and Stock Purchase Plan Committee, 155 North Main Street, Fall River, Massachusetts 02722. 4 6 4. WHO IS THE AGENT FOR THE PLAN PARTICIPANTS? The designated agent under the Plan is State Street Bank and Trust Company (the "Agent"). The Agent will be responsible for investing participants' funds and keeping continuous records of participants' accounts. The Agent will send participants statements of accounts at least quarterly and perform other duties for Plan participants as needed. All Authorization Forms, optional cash payments, notices of withdrawal and other communications with the Agent should be sent to: State Street Bank and Trust Company P.O. Box 8209 Boston, Massachusetts 02101-8209 Should State Street Bank and Trust Company cease to act as Agent under the Plan, another agent will be designated by the Company. ELIGIBILITY AND PARTICIPATION 5. WHO IS ELIGIBLE TO PARTICIPATE? All holders of record of ten or more common shares of the Company, and all employees of the Company owning of record one or more shares, are eligible to participate in the Plan. 6. HOW MAY AN ELIGIBLE PERSON JOIN THE PLAN? A stockholder may join the Plan at any time by signing an Authorization Form and returning it to the Agent. Authorization Forms may be obtained upon request from the Company at the address set forth in Question 3 or from the Agent at the address set forth in Question 4. 7. WHAT DOES THE AUTHORIZATION FORM PROVIDE? The Authorization Form directs: (a) the Company to pay to the Agent the cash dividends on all or a specified portion of the shares of common stock in a participant's name and on all shares credited to his plan account; and (b) the Agent to use these cash dividends, together with any optional cash payments made by the participant, to purchase shares of common stock from the Company. The Authorization Form provides for the purchase of shares through the following investment options. (a) Reinvest dividends on all shares held by a participant. 5 7 (b) Reinvest dividends on less than all of the shares held by a participant and continue to receive cash dividends on the other shares. (c) Invest by making optional payments at any time in any amount from a minimum of $15.00 in any calendar month to a maximum aggregate of $5,000 in any calendar quarter, whether or not dividends are being reinvested. A participant may change the investment option at any time by signing a new Authorization Form and returning it to the Agent. Cash dividends on shares credited to the participant's account under the Plan are automatically reinvested in additional common stock. 8. WHEN MAY A SHAREHOLDER JOIN THE PLAN? A shareholder may enroll in the Plan at any time. The Authorization Form must be received by the Agent by the last day of the month prior to the month in which the next dividend is paid in order to reinvest that dividend. If received after that date, the stockholder's participation in dividend reinvestment will become effective on the following dividend payment date. Dividends are normally paid on the fifteenth day of February, May, August and November, but the Company reserves the right to change such dividend payment dates at any time. FOR EXAMPLE, IN ORDER TO INVEST A QUARTERLY DIVIDEND PAYABLE ON NOVEMBER 15, 1996, A SHAREHOLDER'S AUTHORIZATION FORM MUST BE RECEIVED BY THE AGENT NO LATER THAN OCTOBER 31, 1996. IF THE AUTHORIZATION FORM IS RECEIVED AFTER OCTOBER 31, 1996, THE DIVIDEND PAYABLE ON NOVEMBER 15, 1996 WILL BE PAID IN CASH AND THE SHAREHOLDER'S PARTICIPATION IN DIVIDEND REINVESTMENT WILL COMMENCE WITH THE NEXT DIVIDEND PAYMENT DATE. COST TO PARTICIPANTS 9. ARE THERE ANY COSTS TO THE PARTICIPANTS UNDER THE PLAN? All administration fees will be paid by the Company. There are no brokerage fees or transfer taxes when shares of common stock are purchased from the Company. However, participants will bear certain expenses upon withdrawal from the Plan or if the Company terminates the Plan (see Question 19). PURCHASES 10. HOW MANY SHARES OF COMMON STOCK WILL BE PURCHASED FOR PARTICIPANTS? The number of shares to be purchased for each Plan participant by the Agent will depend upon the amount of dividends to which the participant is entitled, any optional cash payments 6 8 made, and the purchase price of the common stock. Each participant's account will be credited with a number of shares, including fractional shares computed to four decimal places, equal to the total amount to be invested divided by the purchase price per share. 11. WHAT WILL BE THE PRICE OF THE COMMON SHARES PURCHASED UNDER THE PLAN? The price of the common shares purchased from the Company by the Agent on behalf of Plan participants will be 97% of the average of the bid and asked prices of the Company's common stock in the over-the-counter market for the five trading days ending on the day of purchase (or five trading days immediately preceding the day of purchase, if securities markets are closed on the day of purchase). Notwithstanding the foregoing sentence, in the event that such discounted price falls below the book value of the Company's common stock, the discount will be suspended until such time as the discounted price exceeds the book value. During any period of suspension of the discount, the price of the common shares purchased from the Company by the Agent on behalf of Plan participants will be 100% of the average bid and asked prices of the Company's common stock in the over-the-counter market for five consecutive trading days ending on and including the day of purchase (or, in the event that the over-the-counter market is closed on the day of purchase, for the five consecutive trading days immediately preceding the day of purchase). The Company will provide written notification to Plan participants in the event of any period of suspension of the discount. No shares will be available for purchase under the Plan at less than the par value of such shares. OPTIONAL CASH PAYMENTS 12. HOW ARE OPTIONAL CASH PAYMENTS MADE? Optional cash payments may be made in any amount from a minimum of $15 to a maximum of $5,000 in any calendar quarter. Optional cash payments may be made in varying amounts and there is no obligation to make regular optional cash payments. Checks or money orders for optional cash payments must be made to State Street Bank and Trust Company and mailed to the Agent at the address set forth herein under Question 4. 13. WHEN MUST OPTIONAL CASH PAYMENTS BE RECEIVED BY THE AGENT TO BE INVESTED? Optional cash payments will be invested on the fifteenth of each month (the "Investment Date"), whether or not that is a business day. Optional cash payments must be received by the Agent no later than the fifteenth day of any month in order to be invested that month. Optional cash payments received by the Agent after the fifteenth of the month will be held for investment in the following month. NO INTEREST WILL BE PAID ON OPTIONAL CASH PAYMENTS Any optional cash payment which otherwise would be invested will be returned to the participant if a written request is received by the Agent at least 48 hours prior to the date of investment. 7 9 REPORTS TO PARTICIPANTS 14. WHAT RECORD WILL A PARTICIPANT HAVE OF HIS PURCHASES? Each participant in the Plan will receive from the Agent a statement of account at least quarterly showing amounts invested, purchase prices, shares purchased and other information, for the preceding quarter and the year-to-date. These statements are a participant's continuing record of the cost of his purchases and should be retained for income tax purposes. 15. WHAT OTHER REPORTS WILL BE RECEIVED BY PARTICIPANTS? Plan participants will receive the same communications sent to every other holder of the Company's common stock, including the Company's Annual Report to Shareholders, a Notice of Annual Meeting of Shareholders and Proxy Statement, a proxy, and income tax information forms reporting dividends paid. CERTIFICATES FOR SHARES 16. WILL CERTIFICATES BE ISSUED TO PARTICIPANTS FOR SHARES PURCHASED UNDER THE PLAN? Normally, certificates for common stock purchased under the Plan will not be issued to participants. The number of shares held in a participant's account under the Plan will be shown on the quarterly statement of account. However, within five business days of receipt by the Agent of a written request from a participant, certificates for any number of whole shares credited to a participant's account under the Plan will be issued to the participant. Any remaining full shares and any fractional share will continue to be held in the participant's account. CERTIFICATES FOR FRACTIONAL SHARES WILL NOT BE ISSUED UNDER ANY CIRCUMSTANCES. The issuance of certificates will not terminate the participant's continuation of the Plan. Any request for the issuance of certificates to a participant should be mailed to the Agent at the address set forth herein under Question 4. Shares credited to the account of a participant in the Plan may not be acceptable as collateral for loans. A participant who wishes to pledge such shares should request that certificates for such shares be issued and delivered to him. 17. IN WHOSE NAME WILL CERTIFICATES BE REGISTERED WHEN ISSUED TO A PARTICIPANT? The certificates will be issued in the name under which the participant's shares were registered upon enrolling in the Plan. 8 10 WITHDRAWAL FROM THE PLAN 18. WHEN MAY A PARTICIPANT WITHDRAW FROM THE PLAN? A participant may withdraw from the Plan at any time. If a notice of withdrawal is received by the Agent at least ten days prior to the record date for the next dividend such dividend and all subsequent dividends will be paid in cash to the withdrawing participant. If such notice of withdrawal is received by the Agent subsequent to the date specified, such dividends will be invested under the Plan for the participant's account. All subsequent dividends will be paid in cash to the withdrawing participant. Investment of any optional cash payments will be cancelled upon receipt by the Agent of such notice of withdrawal at least 48 hours prior to an investment date, and any optional cash payments received prior to such withdrawal date will be returned to the withdrawing participant. Any shareholder who has withdrawn may re-enroll at any time upon submission of an Authorization Form, as provided under Question 6. Until such time, dividends will be paid to such stockholder in cash. 19. HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN? In order to withdraw from the Plan, a participant must write to State Street Bank and Trust Company, P.O. Box 8209, Boston, Massachusetts 02101 giving notice that he wishes to withdraw from Fall River Gas Company's Share Owner Dividend Reinvestment and Stock Purchase Plan. The participant's account number must also be stated. To facilitate the withdrawal the participant may forward the top portion of the most recent quarterly account statement. When a participant withdraws from the Plan, or upon termination of the Plan by the Company, the Agent will cause a certificate or certificates for the full shares credited to the participant's account to be issued and delivered to the participant. In every case of withdrawal the participant's interest in any fractional share will be converted to cash at a price equal to the average of the bid and asked prices for the Company's common stock for the five trading days ending on such date. Upon withdrawal from the Plan, the participant may also request in writing that some or all of the shares, both whole and fractional, held in his Plan account be sold. If the participant so requests, the Agent will sell such shares and deliver to the participant the proceeds, less a handling charge of 5% of the proceeds received from such sale or $5.00 (whichever is less), and broker's commissions. Shares will be sold for the participant only upon the receipt by the Agent of clear written instructions to sell at the prevailing market price and the proper documents to effect the sale. These documents will include a stock power, signed by the registered owner exactly as his name appears on the Agent's records with signature guaranteed according to the Uniform Commercial Code by a commercial bank which is a member of the Federal Deposit Insurance Corporation or by a member firm of the New York, American, Boston, Midwest or Pacific Stock Exchange. If 9 11 the shares are held of record in the name of a corporation, partnership, trust or other fiduciary or if a record owner has died, the Agent may require certified and current evidence of authority before accepting a request to sell shares of a participant. VOTING RIGHTS 20. HOW ARE PARTICIPANT'S SHARES VOTED? All shares owned by the participant, whether they are held by the shareholder or by the Agent, will be combined for voting purposes. Each participant in the Plan will receive a proxy indicating the total number of shares of common stock held by the participant, including shares registered in his name and shares credited to his account under the Plan. Instruction forms for the purpose of voting will be forwarded to the participant. Alternatively, a participant may vote the shares registered in his name and shares credited to his Plan account in person at the meeting. INCOME TAX INFORMATION 21. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN? a. General: In general, participants in the Plan have the same Federal income tax obligations with respect to reinvested dividends as with dividends not reinvested under the Plan. Participants are treated for Federal income tax purposes as having received, on the dividend payment date, a dividend equal to the full amount of the cash dividend payable on such date with respect to (1) the common stock credited to the participant's account under the Plan, and (2) the shares of common stock owned directly by the participant (the dividends from which may or may not be reinvested under the Plan). This is required even though the reinvested dividends are not actually received but are applied to the purchase of additional shares. The tax basis of shares purchased with optional cash payments is the purchase price per share of the stock on the Investment Date. (See Question 11.) The holding period for shares purchased with dividends or option cash payments begins on the day after the applicable date of investment. A participant will not realize any taxable income when he receives certificates for whole shares, either upon his request for certificates for those shares or upon withdrawal from or termination of the Plan. However, a participant may realize ordinary income or a capital gain or loss on any cash payment that is made in settlement of a fractional share upon withdrawal from or termination of the Plan. Ordinary income or capital gain or loss may also be realized upon withdrawal from the Plan, when any or all whole shares are sold by the participant. The amount 10 12 of income, capital gain or loss will be the difference between the amount received and the tax basis for both the fractional and whole shares which are sold. b. Reinvested Dividends: A participant will generally be treated, for Federal income tax purposes, as having received on the Investment Date a dividend equal to the full amount of the cash dividend paid even though that amount is not actually received by the participant in cash, but, instead, is applied to the purchase of shares for the participant's account. c. Tax Information Forms: Following each tax year, the Company sends each participant a U.S. Information Return (Form 1099 Div. B) reporting the taxable dividends for that tax year. This form contains the information necessary for each participant to complete the dividend income information on his Federal income tax return. Generally, the amount in the box labeled "Total Dividends For The Calendar Year" should be included on a participant's Federal income tax return as taxable income. FOR ADDITIONAL INFORMATION AND ANY QUESTIONS REGARDING TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN, PARTICIPANTS SHOULD CONSULT THEIR OWN TAX ADVISORS. 22. WHAT PROVISION IS MADE FOR FOREIGN SHAREHOLDERS WHOSE DIVIDENDS ARE SUBJECT TO U. S. INCOME TAX WITHHOLDINGS? In case of those foreign shareholders whose dividends are subject to United States income tax withholding, the Agent will apply the net amount of the dividend of such participants, after the deduction of taxes, to the purchase of common stock. If such foreign participants desire to invest the full amount of their dividends, they may tender cash payments to the Agent equal to the amount of tax withheld. The minimum optional cash payment requirement of $15.00 will be waived to accommodate all payments, regardless of size, made by foreign shareholders for this express purpose. Such payments will be invested for the foreign shareholders for this express purpose. Such payments will be invested for the foreign participants on the regular Investment Date for all participants if received by the Agent prior to that date. In addition, foreign shareholders may, of course, make optional cash payments. MISCELLANEOUS 23. WHAT ARE THE RESPONSIBILITIES OF THE AGENT AND THE COMPANY UNDER THE PLAN? Neither the Company nor the Agent, in administering the Plan, will be liable for any act done in good faith or for any good faith omission to act, including, without limitation, any claim of liability arising out of failure to terminate a participant's account upon such participant's death prior to receipt of notice in writing of such death. 11 13 Participants should recognize that neither the Company nor the Agent can assure them of a profit or protect them against a loss on the shares purchased by them under the Plan, nor guaranty the frequency or amount of any future dividends by the Company. 24. MAY THE PLAN BE CHANGED OR DISCONTINUED? Although the Company hopes that shareholder response will justify continuing the Plan indefinitely, the Company reserves the right to modify, suspend or terminate the plan at any time. Notice of any such action will be mailed to all participants at their address of record. Upon termination of the Plan by the Company, certificates for whole shares credited to a participant's account under the Plan will be issued and a cash payment will be made for any fraction of a share. 25. WHAT HAPPENS IF A PARTICIPANT SELLS OR TRANSFERS ALL THE SHARES REGISTERED TO THE PARTICIPANT? If a participant sells or transfers all of the shares registered in the participant's name, participation in the Plan will terminate automatically. Certificates for whole shares credited to his account under the Plan will be issued to the participant and a cash payment will be made for any fractional share. DIVIDENDS ON COMMON STOCK The following table sets forth the cash dividends declared and paid on the Company's common stock for the periods shown:
Dividend Dividend Quarter Ended Per Share Quarter Ended Per Share - - ------------- --------- ------------- --------- December 31, 1994 $0.24 December 31, 1995 $0.24 March 31, 1995 0.24 March 31, 1996 0.24 June 30, 1995 0.24 June 30, 1996 0.24 September 30, 1995 0.24 September 30, 1996 0.24
It is the intention of the Company to declare and pay dividends quarterly on its common stock, but the Company can make no representations concerning the amount or frequency of future dividends. The declaration of dividends must be determined by the Board of Directors from time to time in the light of earnings, cash position and other relevant factors then existing. Reference is made to "Description of Common Stock" herein for information with respect to limitations on the payment of dividends. 12 14 COMMON STOCK PRICE RANGE The Company's common stock is traded over-the-counter. The table below sets forth the bid and asked prices for shares of the Company's common stock, as reported by for the periods indicated.
Quarter Ended Bid Asked - - ------------- --- ----- December 31, 1994 $25 1/2 $26 1/2 March 31, 1995 25 26 1/4 June 30, 1995 25 26 1/2 September 30, 1995 24 24 3/4 December 31, 1995 21 1/2 22 3/4 March 31, 1996 20 3/4 22 1/4 June 30, 1996 18 19 September 30, 1996 18 1/4 19 1/4
The bid and asked prices on October 8, 1996 were $18 1/4 and $19 3/4. These quotations represent prices between dealers and do not include retail markup, markdown or commission. They do not necessarily represent actual transactions. DESCRIPTION OF COMMON STOCK As of September 30, 1996 the authorized capital stock of the Company consisted of 2,201,334 shares of common stock, $0.83 1/3 par value, of which 1,780,542 were issued and outstanding, and 420,792 shares of common stock held in the Company's treasury. The information set forth below is summarized from the Articles of Organization, as amended, of the Company and the Indentures referred to below, filed as exhibits to the Registration Statement of which this Prospectus is part. The statements and descriptions hereinafter contained do not purport to be complete and are qualified in their entirety by reference to such exhibits. DIVIDEND RIGHTS The holders of common stock shall be entitled to receive such dividends as may be declared by the Board of Directors subject to the preferential rights of the holders of preferred stock to receive full cumulative quarterly dividends at the rates set forth in the title of each series thereof before any dividends are paid to the holders of common stock. LIMITATION ON PAYMENT OF DIVIDENDS ON COMMON STOCK The provisions of the Company's indentures securing the Company's outstanding First Mortgage Bonds impose certain restrictions on the payment of cash dividends on, or repurchases of, common stock. Under the most restrictive of these provisions, $7,292,486.75 of retained earnings was unrestricted at June 30, 1996. 13 15 VOTING RIGHTS Except as provided by law or otherwise provided below, the holders of common stock have the sole voting rights and are entitled to one vote for each share held of record. In addition, holders of fractional shares are permitted a vote equal to their fractional interest. The Company's Board of Directors is classified into three classes of three directors and there are no cumulative voting rights which means that a majority of the common stock voting at any election can elect the three directors of the class whose term then expires. The Company's Charter and By-laws contain provisions specifying the vote necessary to take certain actions. The approval of a business combination not approved by two-thirds vote of the Board of Directors requires a 75% vote of common stockholders. The approval of Charter amendments removing or altering that provision and provisions concerning classification of directors, filling vacancies in the Board of Directors and notice requirements for shareholder meetings requires a 75% vote of common stockholders. LIQUIDATION RIGHTS The common stock is entitled to receive all net assets in liquidation after repayment of the Company's indebtedness. CHARTER PROVISIONS THAT MAY AFFECT ATTEMPTS TO CHANGE CONTROL OF THE COMPANY The Company's Charter and By-Laws contain provisions that may have the effect of delaying or deterring a change in control of the Company by requiring a vote of the holders of 75% of the Company's outstanding common shares for approval of certain business combinations of the Company and another entity, which the Company's Board of Directors has not approved by a two-thirds majority. Other provisions concerning classification of the Board, filling vacancies on the Board and notice requirements may have such an effect, but those provisions operate regardless of whether or not extraordinary corporate transactions are proposed. MISCELLANEOUS The common stock has no conversion rights and is not subject to redemption. The outstanding shares of common stock are, and the shares to be issued under the Plan will, when issued and paid for, be fully paid and non-assessable. The Company distributes to its shareholders annual reports containing audited financial statements, and, in addition, twelve-month condensed financial statements in each quarter. The transfer agent of the Company's common stock is State Street Bank and Trust Company, Boston, Massachusetts. 14 16 LEGAL OPINIONS Legal matters in connection with this offering will be passed upon for the Company by Rich, May, Bilodeau & Flaherty, P.C., The Old South Building, 294 Washington Street, Boston, Massachusetts 02108, general counsel for the Company. EXPERTS The financial statements and schedules of the Company, included in the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1995, incorporated by reference herein and elsewhere in the Registration Statement have been incorporated herein and in the Registration Statement in reliance upon the reports of Arthur Andersen LLP independent certified public accountants, included in such Form 10-K incorporated by reference herein, and given upon the authority of said firm as experts in accounting and auditing. INDEMNIFICATION The Company's By-Laws permit the Company's directors and officers (and persons who occupy such positions in other companies at the request of the Company) to be indemnified for liabilities arising in connection with any action, suit or proceeding prosecuted to a final determination on the merits (except any costs or expenses as to which such person shall be finally adjudged to be liable), and any action, suit or proceeding which is settled with the approval of the court having jurisdiction thereof, but only in such amount (which shall not include any sum ordered to be paid by him to the Company) as such court shall determine to be fair and reasonable under the circumstances. Indemnification payments properly authorized may include reimbursement for the amount of the claim or judgment and expenses of defense, including legal fees. Massachusetts law allows such indemnification, but limits provision of indemnification where a person is adjudicated not to have acted in good faith in the reasonable belief that such action was in the best interest of the corporation. Indemnification is also available to officers and directors in connection with certain actions taken by them in reliance upon governmental regulations, rules, orders and determinations. Certain liabilities arising under the Securities Act of 1933 may be covered by this indemnification provision, although the By-Laws provide that indemnification of liabilities arising under such Act shall be available only to the extent that such rights of indemnification may be determined to be valid by a court of competent jurisdiction. Massachusetts law also allows a corporation to purchase and maintain insurance on behalf of such persons against any liabilities incurred in the capacity of director or officer and the Company has such insurance. Pursuant to a vote by Common Stock holders at their 1987 Annual Meeting, the Company's Articles of Organization were amended to provide that, to the fullest extent that the General Laws of the Commonwealth of Massachusetts as they exist on the date of such vote, or as they may thereafter be amended, permit the limitation or elimination of the liability of directors, no director of the Company shall be personally liable to the Company or its 15 17 shareholders for monetary damages for breach of fiduciary duty, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Company with respect to any acts or omissions of such director occurring prior to such amendment or repeal. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable. 16 18 =============================================================================== TABLE OF CONTENTS Page ---- Available Information.................................................... 2 Incorporation of Certain Documents by Reference.............................................................. 2 The Company.............................................................. 3 Use of Proceeds.......................................................... 3 Description of the Plan.................................................. 3 Dividends on Common Stock................................................ 12 Common Stock Price Range................................................. 12 Description of Common Stock.............................................. 13 Legal Opinions.......................................................... 15 Experts.................................................................. 15 Indemnification.......................................................... 15 =============================================================================== =============================================================================== FALL RIVER GAS COMPANY SHARE OWNER DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN COMMON STOCK ($0.83 1/3 PAR VALUE) OCTOBER 11, 1996 PROSPECTUS =============================================================================== 19 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The estimated expenses in connection with the proposed issuance and distribution of the common stock are set forth below: Registration Fee ................. $ 1,638 Printing ......................... $ 2,000 Accounting Fees .................. $ 500 Legal Fees.........................$22,000 Blue Sky Fees and Expenses........ $ 6,000 Miscellaneous Expenses ........... $ 2,000 Total (estimated) ...........$34,138
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The general effect of the Company's Bylaws with respect to issuance for and indemnification of directors and officers is set forth in Part I of this Registration Statement under "INDEMNIFICATION" and is incorporated herein by reference thereto. ITEM 16. LIST OF EXHIBITS See Exhibit Index at page II-5. ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include in any prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (ii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; II-1 20 (2) That for the purpose of determining any liability under the Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) That for the purpose of determining any liability under the Act each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (4) That all post-effective amendments will comply with the applicable forms, rules and regulations of the Commission in effect at the time such post-effective amendments are filed; (5) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and (6) To furnish the Division of Corporation Finance a letter informing said Division when all of the securities registered have been sold. The issuer hereby undertakes to transmit or cause to be transmitted to all participants in the Plan (except those who, having the same address as a shareholder of the registrant, have consented in writing that only one copy of such material need be sent to such address), who do not otherwise receive such material as shareholders of the issuer, at the time and in the manner such material is sent to its shareholders generally, copies of all reports, proxy statements and other communications distributed to its shareholders generally. The issuer also undertakes to transmit to the Commission for its information copies of all such material which is not otherwise furnished to or filed with the Commission pursuant to any other requirement of the Commission. Copies of such material transmitted to the Commission pursuant to this undertaking shall not be deemed to be "filed" as a part of the registration statement. II-2 21 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Fall River, Massachusetts, on the 11th day of October, 1996. FALL RIVER GAS COMPANY By: /s/Bradford J. Faxon ----------------------------------- (Bradford J. Faxon, President) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bradford J. Faxon and Peter H. Thanas, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about said matters as fully to all intents and purposes as he might or could do in person, thereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons and in the capacities indicated on October 11, 1996. (i) Principal Executive Officer: /s/ Bradford J. Faxon President ---------------------------- (Bradford J. Faxon) (ii) Principal Financial Officer and Principal Accounting Officer: /s/Peter H. Thanas Senior Vice President ---------------------------- and Treasurer (Peter H. Thanas) II-3 22 (iii) Director /s/ Cindy L.J. Audette ------------------------------- (Cindy L.J. Audette) /s/Thomas K. Barry ------------------------------- (Thomas K. Barry) /s/ Thomas H. Bilodeau ------------------------------- (Thomas H. Bilodeau) /s/ Bradford J. Faxon ------------------------------- (Bradford J. Faxon) /s/ Raymond H. Faxon ------------------------------- (Raymond H. Faxon) /s/Ronald J. Ferris ------------------------------- (Ronald J. Ferris) /s/Jack R. McCormick ------------------------------- Jack R. McCormick /s/Gilbert C. Oliveira, Jr. ------------------------------- (Gilbert C. Oliveira, Jr.) /s/Donald R. Patnode ------------------------------- (Donald R. Patnode) II-4 23 EXHIBIT INDEX Certain of the following exhibits are filed herewith. Certain other of the following exhibits have heretofore been filed with the Commission and pursuant to Rule 411 are incorporated herein by reference. Sequential Exhibits** Description of Exhibit Page Number - - ---------- ---------------------- ----------- 4(a) Instruments defining the rights of security holders, including indentures. Exhibit 4 to Report on Form 10-K for calendar year ended December 31, 1982. *4(b) Eleventh Supplemental Indenture, dated as of December 15, 1989 between the Company and First National Bank of Boston (Trustee). *4(c) Twelfth Supplemental Indenture, dated as of December 20, 1989 between the Company and First National Bank of Boston (Trustee). *4(d) Thirteenth Supplemental Indenture dated as of September 19, 1996 between the Company and State Street Bank and Trust Company (Trustee), as Successor in interest to First National Bank of Boston. *5 Opinion of Rich, May, Bilodeau & Flaherty, P.C. *24(a) Consent of Arthur Andersen LLP, independent certified public accountants. *24(b) Consent of Rich, May, Bilodeau & Flaherty, P.C. (included in opinion filed as Exhibit 5 to this Registration Statement). *25(a) Power of Attorney (set forth on page II-3 of this Registration Statement). *99(a) A copy of the Order of the Massachusetts Department of Public Utilities relating to the issue and the sale of common stock pursuant to the Plan. * Filed herewith ** Exhibit numbers designated in Regulation S-K. II-5 EX-4.B 2 11TH SUPPLEMENTAL INDENTURE 12-15-89 1 EXHIBIT 4(b) FALL RIVER GAS COMPANY TO THE FIRST NATIONAL BANK OF BOSTON, TRUSTEE --------------------------- ELEVENTH SUPPLEMENTAL INDENTURE DATED AS OF DECEMBER 15, 1989 SUPPLEMENTING THE INDENTURE OF FIRST MORTGAGE DATED AS OF DECEMBER 1, 1952, THE FIRST SUPPLEMENTAL INDENTURE DATED AS OF JANUARY 1, 1955, THE SECOND SUPPLEMENTAL INDENTURE DATED AS OF SEPTEMBER 1, 1957, THE THIRD SUPPLEMENTAL INDENTURE DATED AS OF DECEMBER 1, 1957, THE FOURTH SUPPLEMENTAL INDENTURE DATED AS OF FEBRUARY 1, 1958, THE FIFTH SUPPLEMENTAL INDENTURE DATED AS OF MAY 1, 1959, THE SIXTH SUPPLEMENTAL INDENTURE DATED AS OF MAY 1, 1961, THE SEVENTH SUPPLEMENTAL INDENTURE DATED AS OF NOVEMBER 1, 1961, THE EIGHTH SUPPLEMENTAL INDENTURE DATED AS OF NOVEMBER 1, 1966 THE NINTH SUPPLEMENTAL INDENTURE DATED AS OF JUNE 30, 1971, AND THE TENTH SUPPLEMENTAL INDENTURE DATED AS OF JUNE 1, 1981. ------------------- THIS IS A MORTGAGE OF PERSONAL PROPERTY AS WELL AS A MORTGAGE UPON REAL ESTATE. 2 ELEVENTH SUPPLEMENTAL INDENTURE, dated as of December 15, 1989, between Fall River Gas Company, formerly named Fall River Gas Works Company, a corporation organized and existing under the laws of the Commonwealth of Massachusetts and having its principal place of business in the City of Fall River in said Commonwealth (hereinafter called the "Company") and The First National Bank of Boston, a national banking association organized and existing under the laws of the United States, successor by merger to Old Colony Trust Company, having its principal place of business in the City of Boston in the Commonwealth of Massachusetts (hereinafter called the "Trustee"). Whereas, the Company has heretofore executed and delivered to Old Colony Trust Company, trustee (The First National Bank of Boston, successor trustee), an Indenture of First Mortgage dated as of December 1, 1952 (hereinafter called the "Original Indenture"), a First Supplemental Indenture dated as of January 1, 1955 (hereinafter called the "First Supplemental Indenture"), a Second Supplemental Indenture dated as of September 1, 1957 (hereinafter called the "Second Supplemental Indenture"), a Third Supplemental Indenture dated as of December 1, 1957 (hereinafter called the "Third Supplemental Indenture"), a Fourth Supplemental Indenture dated as of February 1, 1958 (hereinafter called the "Fourth Supplemental Indenture"), a Fifth Supplemental Indenture dated as of May 1, 1959 (hereinafter called the "Fifth Supplemental Indenture"), a Sixth Supplemental Indenture dated as of May 1, 1961 (hereinafter called the "Sixth Supplemental Indenture"), a Seventh Supplemental Indenture dated as of November 1, 1961 (hereinafter called the "Seventh Supplemental Indenture), an Eighth Supplemental Indenture dated as of November 1, 1966 (hereinafter called the "Eighth Supplemental Indenture") a Ninth Supplemental Indenture dated as of June 30, 1971 (hereinafter called the "Ninth Supplemental Indenture"), and a Tenth Supplemental Indenture dated as of June 1, 1981 (hereinafter called the "Tenth Supplemental Indenture") to secure, as provided therein, its bonds (therein and herein called the "Bonds"), to be known generally as its "First Mortgage Bonds", and to be issued in one or more series as provided in the Original Indenture; and Whereas, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate principal amount of First Mortgage Bonds, 4-1/4% Series due 1972, of the Company have been heretofore issued, all of which Bonds were retired contemporaneously with the issue and sale of First Mortgage Bonds, 3-3/4 Series due 1980, referred to below; and Whereas, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate principal amount of First Mortgage Bonds, 3-3/4% Series due 1980 (in the First Supplemental Indenture and herein called the "Bonds of the 1980 Series"), of the Company have been heretofore issued, all of which Bonds have been retired; and Whereas, One Million Dollars ($1,000,000) aggregate principal amount of First Mortgage Bonds, 5-1/4% Series due 1980 (in the Second Supplemental Indenture and herein called the "Bonds of the Second 1980 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and 2 3 Whereas, One Million Two Hundred Thousand Dollars ($1,200,000) aggregate principal amount of First Mortgage Bonds, 5-1/4% Series due 1986 (in the Sixth Supplemental Indenture and herein called the "Bonds of the 1986 Series") of the Company have been heretofore issued, all of which bonds have been retired; and Whereas, Three Million Two Hundred Thousand Dollars ($3,200,000) aggregate principal amount of First Mortgage Bonds, 8-3/4% Series due 1996 (in the Ninth Supplemental Indenture and herein called the "Bonds of the 1996 Series") have heretofore been issued, of which One Million Six Hundred Thousand Dollars ($1,600,000) of such bonds have heretofore been retired; and Whereas, Three Million Four Hundred Thousand Dollars ($3,400,000) aggregate principal amount of First Mortgage Bonds, 15% Series due 1993 (in the Tenth Supplemental Indenture and herein called the "Bonds of the 1993 Series") have heretofore been issued, all of which bonds have heretofore been retired; and WHEREAS, Section 18.01 of the Original Indenture provides, among other things, that the Company, when authorized by a resolution of the Board of Directors, and the Trustee, from time to time and at any time, subject to the restrictions in the Original Indenture, as supplemented and modified, contained, may, and when so required by the Original Indenture, shall, enter into indentures supplemental to the Original Indenture and which thereafter shall form a part thereof, for the purposes, among others, of (a) mortgaging, pledging, conveying, transferring or assigning to the Trustee, and subjecting to the lien of the Original Indenture additional properties acquired by the Company, (b) adding to the Original Indenture other covenants and agreements to be thereafter observed by the Company, (c) providing for the creation of any Series of Bonds, designating the series to be created and specifying the form and provisions of the Bonds of such series, and (d) changing, altering, modifying, varying, or eliminating any of the terms, provisions, restrictions or conditions of the Original Indenture, subject as set forth therein; and WHEREAS, Section 18.02 of the Original Indenture provides, among other things, that the Company, when authorized by a resolution of the Board of Directors, and the Trustee, may, from time to time and at any time, and subject as set forth in said Section 18.02, enter into an indenture or indentures supplemental to the Original Indenture for the purposes of adding any provisions to or changing in any manner or eliminating any of the provisions of the Original Indenture or of any supplemental indenture and modifying certain rights and obligations of the Company and certain rights of the holders of any of the Bonds and coupons; WHEREAS, the Board of Directors and the Stockholders of the Company by resolutions duly adopted authorized to the extent required by law the execution of this Eleventh Supplemental Indenture for the purposes of (a) subjecting to the lien of the Original Indenture the additional properties acquired by the Company since the execution of the Tenth Supplemental Indenture, and (b) adding to the Original Indenture other covenants and agreements to be thereafter observed by the Company (the Original Indenture, as supplemented and modified by the First through Tenth 3 4 Supplemental Indentures, inclusive, and as supplemented by this Eleventh Supplemental Indenture being herein sometimes called the "Indenture"); and WHEREAS, the execution and delivery of this Eleventh Supplemental Indenture has been in all respects duly authorized: NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of and premium, if any, and interest on all Bonds at any time issued and outstanding under the Indenture, according to their tenor, purport and effect, to confirm the lien of the Indenture upon property purchased, constructed or otherwise acquired by the Company since the date of execution of the Tenth Supplemental Indenture and to secure the performance and observance of all the covenants and conditions herein and in the Bonds and in the Indenture contained, and of the sum of Ten Dollars ($10) duly paid to the Company by the Trustee, at or before the ensealing and delivery hereof, and for other valuable considerations, the receipt whereof is hereby acknowledged, the Company has executed and delivered this Eleventh Supplemental Indenture, and by these presents, does grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, pledge, set over and confirm unto THE FIRST NATIONAL BANK OF BOSTON, Trustee, its successors in trust and its and their successors and assigns, all property real, personal or mixed described in the Original Indenture and the First through the Tenth Supplemental Indentures and thereby conveyed or mortgaged or intended so to be, including all such property acquired since the execution and delivery of the Tenth Supplemental Indenture which by the terms of the Indenture is subjected or is intended to be subjected to the lien thereof, including, without limiting the generality of the foregoing, the following described property: CLAUSE I. All of the lands, gas plants and systems, gas works, buildings, structures, garages, sheds, repair shops, storage houses, erections and constructions now or hereafter placed on or under any of the real estate described in Article Twenty of the Original Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures or on or under any part hereof, or on or under any real estate thereafter acquired by the Company, with their fixtures and appurtenances, including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures. CLAUSE II. Also all other real estate and all interests therein now owned or hereafter acquired by the Company including (but without in any way limiting the generality of the foregoing) the real estate and interests therein more particularly described in Schedule A annexed hereto. 4 5 CLAUSE III. All of the machinery, engines, boilers, furnaces, water wells, motors, compressors, conduits, mains, gates, tubes, drains, switchboards, services, pumps, pumping stations, gas holders, reservoirs, expansion tanks, gas mains and pipes, tunnels, subways, bridges, service pipes, pipe lines, fittings, reducers, regulators, drips, valves, connections, implements, meters, tools, gas, mechanical and all other appliances, instruments, apparatus, appurtenances and facilities now owned by the Company or hereafter acquired by it, and constituting or to constitute parts of its gas storage plant or gas distributing system or the equipment thereof or used or provided for use in or appurtenant to the manufacture, transportation, storage, distribution and sale of manufactured gas, natural gas, propane gas, butane gas or a mixture of any thereof (other than excepted property as hereinafter defined), and there is included herein (but not to the exclusion of any other property now owned or hereafter acquired by the Company), the gas manufacturing plants, gas storage plants and gas distributing systems owned by the Company, including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures. CLAUSE IV. All easements, leases, rights, powers, privileges, indeterminate permits, water and riparian rights, and all interests therein, dams and dam sites, franchises, licenses, rights of way, immunities and concessions of the Company, whether granted or acquired by virtue of its Charter, or by virtue of the acts, resolutions, concessions, ordinances, contracts, or other grants of any municipality, county, or other political subdivision or of any private person or body corporate or otherwise, howsoever conferred, now owned or hereafter to be acquired by the Company, to lay, erect, construct, maintain and repair any plants or other property including conduits, mains, pipes, pipe lines, pumping, compressor, regulator and measuring stations, meters, and other equipment to vend gas, within the limits of any incorporated village or city, or elsewhere (other than excepted property as hereinafter defined), and there is included herein (but not to the exclusion of any other property now owned or hereafter acquired by the Company) any indeterminate permits, franchises, permits, grants, rights of way and easements owned by the Company for the transmission and distribution of manufactured gas, natural gas, propane gas, butane gas or a mixture of any thereof, and the laying, erection, construction, maintenance and repair of conduits, mains, pipes, pipe lines, pumping, compressor, regulator and measuring stations, meters and other equipment for that purpose, and wheresoever situated (but not herein specifically excepted), including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures. 5 6 CLAUSE V. Also all property, real, personal and mixed (except as herein expressly excepted), of every nature and description and wheresoever situated, whether or not herein specifically described, and all interests therein, now owned or hereafter acquired by or belonging to the Company or to which it now is, or may at any time hereafter be, in any manner entitled at law or in equity. CLAUSE VI. Also all renewals, replacements, accessions, additions, improvements, betterments, developments, extensions, and enlargements, hereafter made, constructed or acquired by the Company to, of or upon any or all such properties, equipment, systems and/or plants and all property used thereby or useful therefor or incidental thereto or connected therewith now or at any time hereafter subject to the lien of the Indenture, or required so to be by any provision herein contained, and also all franchises, permits and similar rights acquired in connection therewith. CLAUSE VII. Also any and all property of every kind or description (including any property which may be expressly excepted by Clause IX of these granting clauses) which may from time to time after the date of this Eleventh Supplemental Indenture by delivery or by writing of any kind be conveyed, mortgaged, pledged, assigned or transferred to the Trustee by the Company, or by any person, firm, association or corporation with the consent of the Company, or otherwise as expressly permitted by the terms of the Indenture, and accepted by the Trustee, to be held as part of the mortgaged property; and the Trustee is hereby authorized to accept and receive any such property and any such conveyance, mortgage, pledge, assignment or transfer as and for additional security hereunder, and to hold and apply any and all such property subject to and in accordance with the terms and provisions upon which such delivery, conveyance, mortgage, pledge, assignment or transfer shall be made, not inconsistent with the terms of the Indenture. CLAUSE VIII. TOGETHER with all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid properties or any part thereof, with the reversion and reversions, remainder and remainders, tolls, rents, revenues, issues, income, product and profits thereof, and all the estate, rights, title, interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid properties and every part and parcel thereof. SUBJECT, HOWEVER, to the following (none of which, in the opinion of the Company, materially interferes with the conduct of its business): the reservations, exceptions, conditions, limitations and restrictions contained in the several deeds, franchises and contracts or other instruments through which the Company acquired or claims title to or enjoys the use of the 6 7 mortgaged property; such servitudes, easements, rights and privileges in, over, on, under or through said properties as have been granted by the Company to other persons; statutory and municipal requirements relating to land and buildings; the rights of the public and others in streets, roads and highways, open or unopen, or laid out but unopened, crossing or bounding any of the said parcels; the rights of the Commonwealth of Massachusetts and of the United States of America, in and to any streams, rivers or bodies of water abutting any of the said parcels; the rights of electric, gas, water, telephone and telegraph companies (other than the Company) to maintain and operate pole lines, conduits, and gas and water mains over or through any of the said parcels or on or in the streets, roads or highways abutting thereon as the same may now or hereafter be located; any easements visible on the ground but not evidenced by recorded agreements or grants; and permitted encumbrances as defined in Section 1.40 of the Original Indenture; and, with respect to any property which the Company may hereafter construct or acquire, to any liens then in effect thereon or placed thereon for unpaid portions of the purchase money at the time of such acquisition, to the extent permitted by Section 9.10 of the Original Indenture. CLAUSE IX. EXCEPTED PROPERTY EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from the Indenture and from the lien and operation thereof: (a) any and all property expressly excepted and excluded from the Original Indenture and from the lien and operation thereof by paragraph A and all property of the character expressly excepted and excluded by paragraph B through I of Clause IX of the Granting Clauses of the Original Indenture; (b) all property, if any, expressly excepted from the lien of the Indenture in the descriptions of the property contained in Schedule A of the Second Supplemental Indenture; (c) any and all property expressly excepted from the lien of the Indenture in the Granting Clauses of the First through the Tenth Supplemental Indentures; (d) any and all property expressly excepted in the Granting Clauses of this Eleventh Supplemental Indenture; and (e) all property which prior to the execution and delivery of this Eleventh Supplemental Indenture has been released by the Trustee or otherwise disposed of by the Company free from the lien of the Indenture in accordance with the provisions thereof. 7 8 If upon the happening of any default as defined in Article Twelve of the Original Indenture, the Trustee or a receiver or trustee shall enter upon and take possession of the trust estate, the Trustee or such receiver or trustee may, to the extent permitted by law, at the same time likewise take possession of any and all of the property specifically excepted under the heading "Excepted Property" of Granting Clause IX of the Original Indenture, other than paragraph G thereof, together with any and all of the property specifically excepted in the descriptions of the property contained in Schedule A of the Second Supplemental Indenture, and any and all property expressly excepted in the Granting Clauses of the First through the Tenth Supplemental Indentures and in the Granting Clauses of this Eleventh Supplemental Indenture, then on hand and use and administer the same to the same extent as if such property were part of the trust estate, unless and until such default shall be remedied or waived and possession of the trust estate restored to the Company. TO HAVE AND TO HOLD all of the property, real, personal and mixed, and all and singular the lands, properties, estates, rights, franchises, privileges and appurtenances hereby granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed, or intended so to be, unto the Trustee and its successors in trust and to its and their assigns, forever. BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit, security and protection of those who from time to time shall hold the Bonds and coupons, or any of them, authenticated and delivered under the Indenture, and duly issued by the Company, without any discrimination, preference of priority of any one Bond or coupon over any other by reason or priority in the time of issue, sale or negotiation thereof or otherwise, except as provided in Section 12.28 of the Original Indenture, so that, subject to said Section 12.28 each and all of said Bonds and coupons shall have the same right, lien and privilege under the Indenture and shall be equally and proportionately secured thereby (except as any sinking, depreciation or other analogous fund established in accordance with the provisions of the Indenture may afford additional security for the Bonds of any particular series), with the same effect as if all of the Bonds and coupons had been issued, sold and negotiated simultaneously on the date of the delivery of the Original Indenture. THE COMPANY HEREBY DECLARES that it holds and will hold and apply all property and rights, described in paragraph G of Clause IX of the Original Indenture as specifically reserved and excepted, upon the trusts as set forth in the Indenture, and as the Trustee (or any purchaser upon any sale of the mortgaged property) shall for such purpose direct from time to time to the fullest extent permitted by law or in equity and by any instruments creating the same, as fully as if the same could be and had been hereby granted, conveyed, mortgaged, pledged, transferred and assigned to and vested in the Trustee. It is hereby covenanted, declared and agreed by and between the parties hereto that all Bonds and coupons, if any, are to be authenticated, delivered and issued and that all property subject or to become subject to the Indenture is to be held, subject to the further covenants, 8 9 conditions, uses and trusts set forth in the Indenture, and the Company for itself and its successors or assigns does hereby covenant and agree to and with the Trustee and its successor or successors in such trust, for the benefit of those who shall hold said Bonds, or coupons, or any of them, as follows: ARTICLE ONE Amendments of the Indenture Section 1.01. The Original Indenture is hereby modified as follows: (1) by striking out the words "of Bonds;" in Subsection 1.34(4)(ii) and inserting in lieu thereof the words: "and delivery of Bonds pursuant to Section 5.02 and Section 5.05;" (2) by inserting within the form of certificate of available Bond credits in Subsection 2.02(A) immediately after the words "Total amount of Bond credits in Item (1)" and immediately preceding Item (2) of such form of certificate the words "(sum of amounts entered in paragraphs (a), (b), (c) and (d) above);" (3) by inserting within Subsection 2.02(C) the words "paragraph (c) of" immediately preceding the word "Item" in said subsection; (4) by striking out the figure "60%" within Section 5.03 and inserting in lieu thereof the figure "70%"; (5) by striking out the number "60" in Subsection 12.01(c) and inserting in lieu thereof the number "30"; (6) by striking out the number "90" in Subsection 12.01(e) and inserting in lieu thereof the number "60"; and (7) by deleting the semicolon at the end of Subsection 18.01(a) and inserting in lieu thereof the words following: ", but this Subsection 18.01(a) shall not be construed to require the Company to enter into a supplemental indenture specifically mortgaging, pledging, conveying, transferring on assigning to the Trustee, and subjecting to the lien of this Indenture, additional properties as set forth above hereafter acquired by the Company after the date of the execution of the 11th Supplemental Indenture unless the aggregate cost of all such real property acquired after such date or after the date of the most recent supplemental indenture so entered into, whichever shall be the later, shall be in excess of $500,000 (without offset or deduction, for the purposes of this Subsection 18.01(a), of any amount of the proceeds received by 9 10 the Company from the sale, exchange or other disposition, if any, of property of the Company subject to the lien hereof), such supplemental indenture to be entered into not later than 90 days after the requirement to enter the same shall have occurred;" Section 1.02. The Ninth Supplemental Indenture is hereby modified as follows: (1) by deleting the word "or" where last used in paragraph (2) to the definition of "indebtedness for borrowed money" in Section 1.05; (2) by deleting the paragraph reference "(3)" within the definition of "indebtedness for borrowed money" in Section 1.05 and inserting in place thereof the paragraph reference "(4)"; and (3) by inserting the following new paragraph (3) after paragraph (2) within the definition of "indebtedness for borrowed money" in Section 1.05: "(3) Short term indebtedness for borrowed money incurred from time to time for purposes of purchasing gas supplies, but only to the extent that the Company's Cost of Gas Adjustment Clause then reflects an undercollection of allowable costs equal to or greater than the outstanding balance of such indebtedness; and provided further, however, that the exclusion within this paragraph (3) shall not apply if such indebtedness, if otherwise included within the definition of "indebtedness for borrowed money," would cause the Company's aggregate indebtedness for borrowed money to exceed 70% of the Company's total capitalization; or" ARTICLE TWO Miscellaneous Section 2.01. This Eleventh Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture, and shall form a part thereof, and the Original Indenture is hereby confirmed. All terms used in this Eleventh Supplemental Indenture shall be taken to have the same meaning in the Original Indenture except in cases where the context clearly indicates otherwise. Section 2.02. All recitals in this Eleventh Supplemental Indenture are made by the Company only and not by the Trustee; and all of the provisions contained in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect hereof as fully and with like effect as if set forth herein in full. Section 2.03. The Company covenants that it is lawfully seized and possessed at the date of execution of this eleventh Supplemental Indenture of all the trust estate described in this 10 11 Eleventh Supplemental Indenture, except as specifically otherwise stated in this Eleventh Supplemental Indenture, and that all the trust estate so described is free and clear of any lien other than the lien of the Indenture and permitted encumbrances; that the Company will warrant and forever defend all the trust estate so described to the Trustee against the claims of all persons whomsoever except as in the Indenture specifically otherwise stated, that it will maintain and preserve the lien of the Indenture so long as any of the Bonds issued under the Indenture are outstanding; and that it has good right and lawful authority to subject all the trust estate so described to the lien of the Indenture as provided in and by the terms of the Indenture. Section 2.04. This Eleventh Supplemental Indenture may be executed in several counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts, or a many of them as the Company and the Trustee shall preserve undestroyed, shall constitute but one and the same instrument. IN WITNESS WHEREOF, Fall River Gas Company has caused this Eleventh Supplemental Indenture to be signed in its corporate name and behalf by its President or one of its Vice Presidents and its corporate seal to be hereunto affixed and attested by its Clerk or one of its Assistant Clerks, and The First National Bank of Boston in token of its acceptance of the trust hereby created has caused this Eleventh Supplemental Indenture to be signed in its name and behalf by one of its Vice Presidents, all on the day of February, 1990, but as of the day and year first above written. FALL RIVER GAS COMPANY By ------------------------------ and by --------------------------- Attest: - - ------------------ (corporate seal) THE FIRST NATIONAL BANK OF BOSTON By ------------------------------ Attest: - - ----------------- (corporate seal) 11 12 COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF SUFFOLK ) SS.: At Boston on this _____ day of February, 1990, before me appeared ___________________ and __________________, to me personally known, who, being by me duly sworn, did say that they are the President and Treasurer, respectively, of the Fall River Gas Company, and that the seal affixed to the foregoing instrument was signed and sealed by then on behalf of said Company by authority of its Board of Directors, and the said __________________ and ______________ acknowledged said instrument to be the free act and deed of said Company. ----------------------------------- Notary Public My commission expires: (Notarial Seal) COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF SUFFOLK ) SS.: At Boston on this _____day of February, 1990, before me appeared _________________, to me personally known, who, being by me duly sworn, did say that he is a _________________ of the First National Bank of Boston, and that the seal affixed to the foregoing instrument was signed and sealed on behalf of said Bank by authority of its Board of Directors and the said _____________ _____________________ acknowledged said instrument to be the free act and deed of said Bank. ----------------------------------- Notary Public My commission expires: (Notarial Seal) 12 13 Schedule A ---------- All the land together with the buildings and improvements thereto belonging and all of those rights-of-way, privileges and easements in, over or under real estate, located in the Commonwealth of Massachusetts granted to Fall River Gas Company from the following persons pursuant to deeds, easements and other instruments respectively dated and recorded as follows: PART I Rights-of-Way, Privileges and Easements A.
Bristol County Fall River District Registry of Deeds Grantor Date Book Page - - ------- ---- ---- ---- Diversified Equity Corporation June 3, 1981 1359 139 Joseph S. Acevedo June 5, 1981 1357 142 Julia V. Latham September 10, 1981 1368 252 Liduina Noverca October 17, 1981 1371 206 Manuel Botelho, Jr. and Mary O. Botelho October 17, 1981 1371 209 Daniel E. Ferreira and Evelyn I. Ferreira October 17, 1981 1371 212 Louis Cordeiro, Albertina E. Cordeiro and Donald Deschenes September 16, 1983 1461 251 Michael T. Kearns and Eva Kearns October 12, 1983 1467 56 Albert A. Berube, Jr. and Paul A. Berube April 12, 1984 1496 74 Manuel C. Vieira, Maria L.Vieira, Antonio B. Pacheco and Fatima Pacheco April 19, 1984 1497 278 John C. Felix June 19, 1984 1517 161 Deschene Building Development Corporation August 29, 1984 1523 58 Fall River Construction Company, Inc., a/k/a Fall River Construction Co., Inc. April 1, 1985 1562 189
14
Jeffrey Brisbon, George Gabbour and Cynthia Gabbour, d/b/a G&B Realty October 3, 1985 1605 148 Louise C. Howayeck October 3, 1985 1605 151 Domenico Iammarrone and Antoinett Iammorrone October 3, 1985 1605 153 Fall River Construction Company, Inc., a/k/a Fall River Construction Co., Inc. March 1, 1986 1656 327 Mario J. and Maria C. Lopes September 16, 1986 1719 17 Fleming Engineering and Building Corp. October 7, 1986 1728 98 Fleming Engineering and Building Corp. October 7, 1986 1728 100 Fleming Engineering and Building Corp. October 7, 1986 1728 102 Linn G. and Kathleen M. Graves December 22, 1986 1761 325 Dillon Lane Construction Corporation January 15, 1987 1775 145 The Landing at South Park Inc. May 22, 1987 1829 116 Kenneth E. Steen January 27, 1989 2075 173 Fall River Construction Co., Inc. August 8, 1989 2365 305 Marvel Street Realty Group, Inc. August 10, 1989 2135 12
B.
Bristol County Fall River District Registry of the Land Court Deeds Grantor Date Document Number - - ------- ---- --------------- Fall River Construction Company, Inc. a/k/a Fall River Construction Co., Inc. April 11, 1986 15728 Kenneth E. Steen January 27, 1989 18853
2 15 C.
Bristol County Fall River District Registry of Deeds Grantor Date Book Page - - ------- ---- ---- ---- Kathy J. Szal March 12, 1982 1839 251 Aime A. Barnaby, Anita R. Barnaby and James P. Barnaby December 3, 1983 1879 1071 A. Read Bragg and David H.P. Streeten August 15, 1985 1931 1287 Kathleen Brum July 7, 1986 1974 1193 Charles and Melina Barboza July 7, 1986 1975 0353 Kathleen Brum August 18, 1986 1980 248 Richard and Joyce Aubin September 12, 1986 1985 0541
3 EX-4.C 3 12TH SUPPLEMENTAL INDENTURE 12/20/89 1 Exhibit 4(c) ------------ =============================================================================== FALL RIVER GAS COMPANY ====================== TO == THE FIRST NATIONAL BANK OF BOSTON, ================================== Trustee ======= =========== TWELFTH SUPPLEMENTAL INDENTURE ============================== dated as of December 20, 1989 ============================= Supplementing the Indenture of First Mortgage ============================================= dated as of December 1, 1952, ============================= the First Supplemental Indenture ================================ dated as of January 1, 1955, ============================ the Second Supplemental Indenture ================================= dated as of September 1, 1957, ============================== the Third Supplemental Indenture ================================ dated as of December 1, 1957, ============================= the Fourth Supplemental Indenture ================================= dated as of February 1, 1958, ============================= the Fifth Supplemental Indenture ================================ dated as of May 1, 1959, ======================== the Sixth Supplemental Indenture ================================ dated as of May 1, 1961, ======================== the Seventh Supplemental Indenture ================================== dated as of November 1, 1961, ============================= the Eighth Supplemental Indenture ================================= dated as of November 1, 1966 ============================ the Ninth Supplemental Indenture ================================ dated as of June 30, 1971 ========================= the Tenth Supplemental Indenture ================================ dated as of June 1, 1981 and ============================ the Eleventh Supplemental Indenture =================================== dated as of December 15, 1989 ============================= ============== This is a Mortgage of Personal Property as well as a ==================================================== Mortgage upon Real Estate ========================= - - -------------------------------------------------------------------------------- 2 TWELFTH SUPPLEMENTAL INDENTURE, dated as of December 20, 1989, between FALL RIVER GAS COMPANY, formerly named Fall River Gas Works Company, a corporation organized and existing under the laws of The Commonwealth of Massachusetts and having its principal place of business in the City of Fall River in said Commonwealth (hereinafter called the "Company") and THE FIRST NATIONAL BANK OF BOSTON, a national banking association organized and existing under the laws of the United States, successor by merger to Old Colony Trust Company, having its principal place of business in the City of Boston in The Commonwealth of Massachusetts (hereinafter called the "Trustee"). WHEREAS, the Company has heretofore executed and delivered to Old Colony Trust Company, trustee (The First National Bank of Boston, successor trustee), an Indenture of First Mortgage dated as of December 1, 1952 (hereinafter called the "Original Indenture"), a First Supplemental Indenture dated as of January 1, 1955 (hereinafter called the "First Supplemental Indenture"), a Second Supplemental Indenture dated as of September 1, 1957 (hereinafter called the "Second Supplemental Indenture"), a Third Supplemental Indenture dated as of December 1, 1957 (hereinafter called the "Third Supplemental Indenture"), a Fourth Supplemental Indenture dated as of February 1, 1958 (hereinafter called the "Fourth Supplemental Indenture"), a Fifth Supplemental Indenture dated as of May 1, 1959 (hereinafter called the "Fifth Supplemental Indenture"), a Sixth Supplemental Indenture dated as of May 1, 1961 (hereinafter called the "Sixth Supplemental Indenture"), a Seventh Supplemental Indenture dated as of November 1, 1961 (hereinafter called the "Seventh Supplemental Indenture"), an Eighth Supplemental Indenture dated as of November 1, 1966 (hereinafter called the "Eighth Supplemental Indenture"), a Ninth Supplemental Indenture dated as of June 30, 1971 (hereinafter called the "Ninth Supplemental Indenture"), a Tenth Supplemental Indenture dated as of June 1, 1981 (hereinafter called the "Tenth Supplemental Indenture") and an Eleventh Supplemental Indenture dated as of December 15, 1989 (hereinafter called the "Eleventh Supplemental Indenture") to secure, as provided therein, its bonds (therein and herein called the "Bonds"), to be known generally as its "First Mortgage Bonds", and to be issued in one or more series as provided in the Original Indenture; and WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate principal amount of First Mortgage Bonds, 4 1/4% Series due 1972, of the Company have been heretofore 3 issued, all of which Bonds were retired contemporaneously with the issue and sale of First Mortgage Bonds, 3 3/4% Series due 1980, referred to below; and WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate principal amount of First Mortgage Bonds, 3 3/4% Series due 1980 (in the First Supplemental Indenture and herein called the "Bonds of the 1980 Series"), of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, One Million Dollars ($1,000,000) aggregate principal amount of First Mortgage Bonds, 5 1/4% Series due 1980 (in the Second Supplemental Indenture and herein called the "Bonds of the Second 1980 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, One Million Two Hundred Thousand Dollars ($1,200,000) aggregate principal amount of First Mortgage Bonds, 5 1/4% Series due 1986 (in the Sixth Supplemental Indenture and herein called the "Bonds of the 1986 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, Three Million Two Hundred Thousand Dollars ($3,200,000) aggregate principal amount of First Mortgage Bonds, 8 3/4% Series due 1996 (hereinafter referred to as "Bonds of the 1996 Series") have heretofore been issued of which One Million Six Hundred Thousand Dollars ($1,600,000) are presently outstanding; and WHEREAS, Three Million Four Hundred Thousand Dollars ($3,400,000) aggregate principal amount of First Mortgage Bonds, 15% Series due 1993 (in the Tenth Supplemental Indenture and herein called the "Bonds of the 1993 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, the Board of Directors of the Company has established under Section 3.02 of the Original Indenture a new series of Bonds to be designated First Mortgage Bonds, 9.44% Series due 2020 (hereinafter referred to as "Bonds of the 2020 Series") and has authorized the issue of said Bonds of the 2020 Series in the aggregate principal amount of Six Million Five Hundred Thousand Dollars ($6,500,000) pursuant to the provisions of Article Two of this Twelfth Supplemental Indenture; and 4 WHEREAS, Section 18.01 of the Original Indenture provides, among other things, that the Company, when authorized by a resolution of the Board of Directors, and the Trustee, from time to time and at any time, subject to the restrictions in the Original Indenture, as supplemented and modified, contained, may, and when so required by the Original Indenture, shall, enter into indentures supplemental to the Original Indenture and which thereafter shall form a part thereof, for the purposes, among others, of (a) mortgaging, pledging, conveying, transferring or assigning to the Trustee, and subjecting to the lien of the Original Indenture additional properties acquired by the Company, (b) adding to the Original Indenture other covenants and agreements to be thereafter observed by the Company, and (c) providing for the creation of any Series of Bonds, designating the series to be created and specifying the form and provisions of the Bonds of such series; and WHEREAS, the Board of Directors and the Stockholders of the Company by resolutions duly adopted authorized to the extent required by law the execution of this Twelfth Supplemental Indenture for the purposes of creating the Bonds of the 2020 Series, designating the series created and specifying the form and the provisions of the Bonds of such series (the Original Indenture, as supplemented and modified by the First through the Eleventh Supplemental Indentures, inclusive, and as supplemented by this Twelfth Supplemental Indenture being herein sometimes called the "Indenture"); and WHEREAS, all acts and proceedings required by law and by the Certificate of Organization and Certificate of Incorporation and by-laws of the Company necessary to secure the payment of the principal of and interest and premium, if any, on the Bonds of the 2020 Series, to make the Bonds of the 2020 Series to be issued hereunder, when executed by the Company, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal obligations of the Company, and to constitute the Indenture a valid and binding mortgage for the security of the Bonds, in accordance with its and their terms, have been done and taken; and the execution and delivery of this Twelfth Supplemental Indenture and the issue of the Bonds of the 2020 Series have been in all respects duly authorized: NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of and premium, if any, and interest on all Bonds at any time issued and outstanding under 5 the Indenture, according to their tenor, purport and effect, to confirm the lien of the Indenture upon property purchased, constructed or otherwise acquired by the Company since the date of execution of the Tenth Supplemental Indenture and to secure the performance and observance of all the covenants and conditions herein and in the Bonds and in the Indenture contained, and to declare the terms and conditions upon and subject to which the Bonds of the 2020 Series are and are to be issued and secured, and for and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds of the 2020 Series by the holders thereof, and of the sum of Ten Dollars ($10) duly paid to the Company by the Trustee, at or before the ensealing and delivery hereof, and for other valuable considerations, the receipt whereof is hereby acknowledged, the Company has executed and delivered this Twelfth Supplemental Indenture, and by these presents, does grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, pledge, set over and confirm unto THE FIRST NATIONAL BANK OF BOSTON, Trustee, its successors in trust and its and their successors and assigns, all property real, personal or mixed described in the Original Indenture and the First through the Tenth Supplemental Indentures and thereby conveyed or mortgaged or intended so to be, including all such property acquired since the execution and delivery of the Tenth Supplemental Indenture which by the terms of the Indenture is subjected or is intended to be subjected to the lien thereof, including, without limiting the generality of the foregoing, the following described property: CLAUSE I. All of the lands, gas plants and systems, gas works, buildings, structures, garages, sheds, repair shops, storage houses, erections and constructions now or hereafter placed on or under any of the real estate described in Article Twenty of the Original Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures or on or under any part hereof, or on or under any real estate thereafter acquired by the Company, with their fixtures and appurtenances, including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures. 6 CLAUSE II. Also all other real estate and all interests therein now owned or hereafter acquired by the Company. CLAUSE III. All of the machinery, engines, boilers, furnaces, water wells, motors, compressors, conduits, mains, gates, tubes, drains, switchboards, services, pumps, pumping stations, gas holders, reservoirs, expansion tanks, gas mains and pipes, tunnels, subways, bridges, service pipes, pipe lines, fittings, reducers, regulators, drips, valves, connections, implements, meters, tools, gas, mechanical and all other appliances, instruments, apparatus, appurtenances and facilities now owned by the Company or hereafter acquired by it, and constituting or to constitute parts of its gas storage plant or gas distributing system or the equipment thereof or used or provided for use in or appurtenant to the manufacture, transportation, storage, distribution and sale of manufactured gas, natural gas, propane gas, butane gas or a mixture of any thereof (other than excepted property as hereinafter defined), and there is included herein (but not to the exclusion of any other property now owned or hereafter acquired by the Company), the gas manufacturing plants, gas storage plants and gas distributing systems owned by the Company, including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures. CLAUSE IV. All easements, leases, rights, powers, privileges, indeterminate permits, water and riparian rights, and all interests therein, dams and dam sites, franchises, licenses, rights of way, immunities and concessions of the Company, whether granted or acquired by virtue of its Charter, or by virtue of the acts, resolutions, concessions, ordinances, contracts, or other grants of any municipality, county, or other political subdivision or of any private person or body corporate or otherwise, howsoever conferred, now owned or hereafter to be acquired by the Company, to lay, erect, construct, maintain and repair any plants or other property including conduits, mains, 7 pipes, pipe lines, pumping, compressor, regulator and measuring stations, meters, and other equipment to vend gas, within the limits of any incorporated village or city, or elsewhere (other than excepted property as hereinafter defined), and there is included herein (but not to the exclusion of any other property now owned or hereafter acquired by the Company) any indeterminate permits, franchises, permits, grants, rights of way and easements owned by the Company for the transmission and distribution of manufactured gas, natural gas, propane gas, butane gas or a mixture of any thereof, and the laying, erection, construction, maintenance and repair of conduits, mains, pipes, pipe lines, pumping, compressor, regulator and measuring stations, meters and other equipment for that purpose, and wheresoever situated (but not herein specifically excepted), including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Tenth Supplemental Indentures. CLAUSE V. Also all property, real, personal and mixed (except as herein expressly excepted), of every nature and description and wheresoever situated, whether or not herein specifically described, and all interests therein, now owned or hereafter acquired by or belonging to the Company or to which it now is, or may at any time hereafter be, in any manner entitled at law or in equity. CLAUSE VI. Also all renewals, replacements, accessions, additions, improvements, betterments, developments, extensions, and enlargements, hereafter made, constructed or acquired by the Company to, of or upon any or all such properties, equipment, systems and/or plants and all property used thereby or useful therefor or incidental thereto or connected therewith now or at any time hereafter subject to the lien of the Indenture, or required so to be by any provision herein contained, and also all franchises, permits and similar rights acquired in connection therewith. 8 CLAUSE VII. Also any and all property of every kind or description (including any property which may be expressly excepted by Clause IX of these granting clauses) which may at any time or from time to time after the date of this Twelfth Supplemental Indenture by delivery or by writing of any kind be conveyed, mortgaged, pledged, assigned or transferred to the Trustee by the Company, or by any person, firm, association or corporation with the consent of the Company, or otherwise as expressly permitted by the terms of the Indenture, and accepted by the Trustee, to be held as part of the mortgaged property; and the Trustee is hereby authorized to accept and receive any such property and any such conveyance, mortgage, pledge, assignment or transfer as and for additional security hereunder, and to hold and apply any and all such property subject to and in accordance with the terms and provisions upon which such delivery, conveyance, mortgage, pledge, assignment or transfer shall be made, not inconsistent with the terms of the Indenture. CLAUSE VIII. TOGETHER with all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid properties or any part thereof, with the reversion and reversions, remainder and remainders, tolls, rents, revenues, issues, income, product and profits thereof, and all the estate, rights, title, interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid properties and every part and parcel thereof. SUBJECT, HOWEVER, to the following (none of which, in the opinion of the Company, materially interferes with the conduct of its business): the reservations, exceptions, conditions, limitations and restrictions contained in the several deeds, franchises and contracts or other instruments through which the Company acquired or claims title to or enjoys the use of the mortgaged property; such servitudes, easements, rights and privileges in, over, on, under or through said properties as have been granted by the Company to other persons; statutory and municipal requirements relating to land and buildings; the rights of the public and others in streets, roads and highways, open or unopen, or laid out but unopened, crossing or bounding any of the said parcels; the rights of The Commonwealth of Massachusetts and 9 of the United States of America, in and to any streams, rivers or bodies of water abutting any of the said parcels; the rights of electric, gas, water, telephone and telegraph companies (other than the Company) to maintain and operate pole lines, conduits, and gas and water mains over or through any of the said parcels or on or in the streets, roads or highways abutting thereon as the same may now or hereafter be located; any easements visible on the ground but not evidenced by recorded agreements or grants; and permitted encumbrances as defined in Section 1.40 of the Original Indenture; and, with respect to any property which the Company may hereafter construct or acquire, to any liens then in effect thereon or placed thereon for unpaid portions of the purchase money at the time of such acquisition, to the extent permitted by Section 9.10 of the Original Indenture. CLAUSE IX. EXCEPTED PROPERTY EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from the Indenture and from the lien and operation thereof: (a) any and all property expressly excepted and excluded from the Original Indenture and from the lien and operation thereof by paragraph A and all property of the character expressly excepted and excluded by paragraph B through I of Clause IX of the Granting Clauses of the Original Indenture; (b) all property, if any, expressly excepted from the lien of the Indenture in the descriptions of the property contained in Schedule A of the Second Supplemental Indenture; (c) any and all property expressly excepted from the lien of the Indenture in the Granting Clauses of the First through the Tenth Supplemental Indentures; (d) any and all property expressly excepted in the Granting Clauses of this Twelfth Supplemental Indenture; and (e) all property which prior to the execution and delivery of this Twelfth Supplemental Indenture has been released by the Trustee or otherwise disposed of by the Company free from the lien of the Indenture in accordance 10 with the provisions thereof. If upon the happening of any default as defined in Article Twelve of the Original Indenture, the Trustee or a receiver or trustee shall enter upon and take possession of the trust estate, the Trustee or such receiver or trustee may, to the extent permitted by law, at the same time likewise take possession of any and all of the property specifically excepted under the heading "Excepted Property" of Granting Clause IX of the Original Indenture, other than paragraph G thereof, together with any and all of the property specifically excepted in the descriptions of the property contained in Schedule A of the Second Supplemental Indenture, and any and all property expressly excepted in the Granting Clauses of the First through the Tenth Supplemental Indentures and in the Granting Clauses of this Twelfth Supplemental Indenture, then on hand and use and administer the same to the same extent as if such property were part of the trust estate, unless and until such default shall be remedied or waived and possession of the trust estate restored to the Company. TO HAVE AND TO HOLD all of the property, real, personal and mixed, and all and singular the lands, properties, estates, rights, franchises, privileges and appurtenances hereby granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed, or intended so to be, unto the Trustee and its successors in trust and to its and their assigns, forever. BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit, security and protection of those who from time to time shall hold the Bonds and coupons, or any of them, authenticated and delivered under the Indenture, and duly issued by the Company, without any discrimination, preference or priority of any one Bond or coupon over any other by reason or priority in the time of issue, sale or negotiation thereof or otherwise, except as provided in Section 12.28 of the Original Indenture, so that, subject to said Section 12.28 each and all of said Bonds and coupons shall have the same right, lien and privilege under the Indenture and shall be equally and proportionately secured thereby (except as any sinking, depreciation or other analogous fund established in accordance with the provisions of the Indenture may afford additional security for the Bonds of any particular series), with the same effect as if all of the Bonds and coupons had been issued, sold 11 and negotiated simultaneously on the date of the delivery of the Original Indenture. THE COMPANY HEREBY DECLARES that it holds and will hold and apply all property and rights, described in paragraph G of Clause IX of the Original Indenture as specifically reserved and excepted, upon the trusts as set forth in the Indenture, and as the Trustee (or any purchaser upon any sale of the mortgaged property) shall for such purpose direct from time to time to the fullest extent permitted by law or in equity and by any instruments creating the same, as fully as if the same could be and had been hereby granted, conveyed, mortgaged, pledged, transferred and assigned to and vested in the Trustee. It is hereby covenanted, declared and agreed by and between the parties hereto that all Bonds and coupons, if any, are to be authenticated, delivered and issued and that all property subject or to become subject to the Indenture is to be held, subject to the further covenants, conditions, uses and trusts set forth in the Indenture, and the Company for itself and its successors or assigns does hereby covenant and agree to and with the Trustee and its successor or successors in such trust, for the benefit of those who shall hold said Bonds, or coupons, or any of them, as follows: 12 ARTICLE ONE. BONDS OF THE 2020 SERIES AND CERTAIN PROVISIONS RELATING THERETO. Section 1.01. A. TERMS OF BONDS OF THE 2020 SERIES. There shall be and hereby is created a new series of Bonds, known as and entitled "First Mortgage Bonds, 9.44% Series due 2020" (herein referred to as the "Bonds of the 2020 Series"). The principal amount of the Bonds of the 2020 Series shall be and hereby is limited, except for duplicate Bonds authenticated and delivered pursuant to Section 3.12 of the Original Indenture, to Six Million Five Hundred Thousand Dollars ($6,500,000) in aggregate principal amount. The definitive Bonds of the 2020 Series shall be registered Bonds without coupons of the denomination of $100,000 or any multiple thereof. The Bonds of the 2020 Series will, notwithstanding the provisions of Section 3.05 of the Original Indenture, be dated and bear interest from the date of initial issue and payment to the Company by the purchaser or purchasers thereof. All Bonds of the 2020 Series shall mature February 15, 2020, and will bear interest at the rate of 9.44% per annum until the payment of the principal thereof, such interest to be payable on August 15, 1990 and thereafter semi-annually on February 15 and August 15 in each year. The principal of, the premium, if any, and interest on, the Bonds of the 2020 Series will be paid in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, at the principal corporate trust office of the Trustee in Canton, Massachusetts. For purposes of this Twelfth Supplemental Indenture and the Bonds of the 2020 Series, the term "premium" shall include any "Make Whole Amount", as the latter term is defined in such Bonds. The definitive Bonds of the 2020 Series, notwithstanding the provisions of Section 3.04 of the Original Indenture, may be printed, typed or otherwise reproduced in any manner satisfactory to the Trustee without the use of engraving or steel engraved borders. As permitted by the provisions of Section 3.10 of the Original Indenture and upon payment at the option of the Company 13 of the charges provided in Section 3.11 of the Original Indenture, Bonds of the 2020 Series may be exchanged for a new Bond or Bonds of different authorized denominations of like aggregate principal amount. The Trustee hereunder shall, by virtue of its office as such Trustee, be a paying agent of the Company for the purpose of the payment of the principal of and premium, if any, and interest on the Bonds of the 2020 Series and the registrar and transfer agent of the Company for the purpose of registering and transferring Bonds of the 2020 Series. B. FORM OF BONDS OF THE 2020 SERIES The Bonds of the 2020 Series and the Trustee's authentication certificate to be executed on all of the Bonds of said series, shall be in substantially the following forms, respectively: 14 [FORM OF BOND OF THE 2020 SERIES] This Bond has not been registered under the Securities Act of 1933 and may not be sold, assigned or transferred in the absence of such registration or a written opinion of counsel reasonably satisfactory to the Company to the effect that such sale, assignment or transfer is not a transaction requiring registration of this Bond under the Securities Act of 1933. No. RG $ -------------------- ----------------------- FALL RIVER GAS COMPANY FIRST MORTGAGE BOND, 9.44% SERIES DUE 2020 DUE FEBRUARY 15, 2020 FALL RIVER GAS COMPANY, a Massachusetts corporation (hereinafter sometimes called the "Company"), for value received, hereby promises to pay to_________ , or registered assigns, _______________________Dollars ($_____________________ ) on February 15, 2020, and to pay to said payee, or registered assigns, interest hereon from the date hereof at the rate of 9.44% per annum, semi-annually on the fifteenth day of February and August in each year until payment of the principal hereof. To the extent permitted by law, interest shall be payable on any overdue principal or interest at the rate of 11.44% per annum; interest at the rate of 11.44% per annum shall accrue from the date such principal or interest was due and payable, disregarding for this purpose any period of grace used in determining the existence of a default under the Indenture (as hereinafter defined). The principal of and the premium, if any, and interest on this bond will be paid in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, at the principal corporate trust office of the Trustee, or its successor in trust, in Canton, Massachusetts. This bond is one of the bonds, of the above designated 15 series, of an authorized issue of bonds of the Company known as First Mortgage Bonds, all issued or issuable in one or more series under and equally and proportionately secured (except insofar as any sinking fund, depreciation fund or other fund established in accordance with the provisions of the Indenture hereinafter mentioned may afford additional security for the bonds of any specific series) by an Indenture of First Mortgage dated as of December 1, 1952, as supplemented and modified by a First Supplemental Indenture dated as of January 1, 1955, and supplemented by a Second Supplemental Indenture dated as of September 1, 1957, a Third Supplemental Indenture dated as of December 1, 1957, a Fourth Supplemental Indenture dated as of February 1, 1958, a Fifth Supplemental Indenture dated as of May 1, 1959, a Sixth Supplemental Indenture dated as of May 1, 1961, a Seventh Supplemental Indenture dated as of November 1, 1961 and an Eighth Supplemental Indenture dated as of November 1, 1966, each executed and delivered by the Company to Old Colony Trust Company, Boston, Massachusetts, as Trustee, to which The First National Bank of Boston, Boston, Massachusetts is successor Trustee (herein said The First National Bank of Boston, as said trustee, and its successors under said Indenture sometimes called the "Trustee"), a Ninth Supplemental Indenture dated as of June 1, 1971, a Tenth Supplemental Indenture dated as of June 1, 1981, an Eleventh Supplemental Indenture dated as of December 15, 1989 and a Twelfth Supplemental Indenture dated as of December 20, 1989 executed and delivered by the Company to the Trustee, and all indentures supplemental thereto (herein sometimes called the "Indenture") reference to which is hereby made for a description of the property mortgaged and pledged as security for said bonds, the nature and extent of the security, and the rights, duties and immunities thereunder of the Trustee, the rights of the holders of said bonds and of the Trustee and of the Company in respect of such security, and the terms upon which said bonds may be issued thereunder; but neither the foregoing reference to the Indenture nor any provision of this bond or of the Indenture or of any indenture supplemental thereto shall affect or permit any impairment of the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated times herein provided, the principal of and the premium, if any, and the interest on this bond as herein provided. The bonds of this series are entitled to the benefits of a Guaranty and Negative Pledge Agreement to which reference is made in the Bond Purchase Agreement of even date herewith between the 16 Company and the original holder of the bonds of this series and the Endorsement endorsed hereon or attached hereto. The bonds of this series are subject to redemption prior to maturity as a whole or in part at the option of the Company at any time on or after February 15, 2005 and prior to maturity, upon payment of the principal amount of bonds to be redeemed plus (i) accrued interest thereon and (ii) an amount equal to the Make-Whole Amount. Notwithstanding the provisions of Section 8.05 of the Indenture, no trust moneys (as such term is defined in the Indenture) may be applied by the Trustee at any time to the redemption prior to maturity of any bonds of this series. As used herein, the following terms shall have the following respective meanings: The term "Make Whole Amount" shall mean at any time with respect to any redemption of the bonds of this series, to the extent that the Treasury Rate at such time is lower than 9.44% per annum, the excess of (a) the present value of the principal and interest payments on and in respect of the bonds of this series being redeemed that would otherwise become due and payable (without giving effect to such redemption), discounted at a rate which is equal to the Treasury Rate (plus, in the case of redemptions on or after February 15, 2005 and on or before February 15, 2015, 30 basis points) over (b) the principal amount of the bonds of this series being redeemed, at par. To the extent that the Treasury Rate at the time of such redemption is equal to or higher than 9.44% per annum, the Make Whole Amount is zero. The term "premium" shall include any Make Whole Amount. The term "Treasury Rate" shall mean at any time with respect to any bonds of this series being redeemed, the arithmetic average of the two most recent yields to maturity on the United States Treasury obligation with a constant maturity (as compiled by and published by the United States Federal Reserve Statistical Release designated H.15(519) or its successor publication for the two business days next preceding the date of such redemption) most nearly equal to (by rounding to the nearest month) the Weighted Average Life to Maturity of the bonds of this series then being redeemed. The term "Weighted Average Life to Maturity" shall mean, at 17 any date, the number of years obtained by dividing the then Remaining Dollar-years of the bonds of this series being redeemed by the then outstanding principal amount of such bonds. For purposes of this definition, the "Remaining Dollar-years" of any bonds of this series being redeemed shall mean, at any date, the total of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment. If this bond or any portion thereof ($1,000 or any multiple thereof) is duly designated for redemption, if payment of the principal hereof or of such portion, together with accrued interest, and the Make Whole Amount is irrevocably provided for and if notice of such redemption is duly given or provided for, all as specified in the Indenture, this bond or such portion shall cease to be entitled to the lien of the Indenture from and after the date such payment and notice are irrevocably so provided for and shall cease to bear interest from and after the date fixed for redemption. In the event of the selection for redemption of a portion only of the principal of this bond, payment of the redemption price will be made at the option of the registered owner, either (a) upon notation hereon by the holder of this bond of such payment of the portion of the principal of this bond so called for redemption, or (b) upon surrender of this bond in exchange for a bond or bonds for the unredeemed balance of the principal amount of this bond. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than sixty-six and two-thirds percent in principal amount of the bonds at the time outstanding (determined as provided in the Indenture) including, if more than one series of bonds shall be at the time outstanding, not less than sixty-six and two-thirds percent in principal amount of the bonds at the time outstanding of each series affected, to effect, by an indenture or indentures supplemental to the Indenture, modifications or alterations of the Indenture and of the rights and obligations of the Company and of the holders of the bonds and coupons; provided, however, that no such modification or alteration shall be made without the consent of the registered owner hereof which will (a) extend the 18 maturity of this bond or reduce the rate or extend or otherwise change the time of payment of interest hereon or reduce the amount of the principal hereof or reduce any premium payable on the redemption hereof, or (b) permit the creation of any lien, not otherwise permitted, prior to or on a parity with the lien of the Indenture, or alter the equal and proportionate security afforded by the lien of the Indenture for the bonds issued thereunder, or (c) reduce the number or percentage of the principal amount of the bonds upon the consent of the holders of which modifications or alterations may be made as aforesaid or defaults may be waived. This bond is transferable by the registered owner hereof in person or by his duly authorized attorney, on books of the Company kept for the purpose, at the principal corporate trust office of the Trustee upon surrender of this bond for cancellation and upon payment, if the Company shall so require, of the charges provided for in the Indenture, and thereupon a new bond of the same series of like principal amount will be issued to the transferee in exchange therefor. The registered owner of this bond at his option may surrender the same for cancellation at said office and receive in exchange therefor the same aggregate principal amount of bonds of the same series but of other authorized denominations upon payment, if the Company shall so require, of the charges provided for in the Indenture and subject to the terms and conditions therein set forth. If a default as defined in the Indenture shall occur, the principal of this bond may become or be declared due and payable before maturity in the manner and with the effect provided in the Indenture. The holders, however, of certain specified percentages of the bonds at the time outstanding, including in certain cases specified percentages of bonds of particular series, may in the cases, to the extent and under the conditions provided in the Indenture, waive past defaults thereunder and the consequences of such defaults. No recourse shall be had for the payment of the principal of or the premium, if any, or the interest on this bond, or expenses related thereto or for any claim based hereon, or otherwise in respect hereof or of the Indenture, against any incorporator, stockholder, director or officer, past, present or future, as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or such predecessor or successor 19 corporation, under any constitution or statute or rule of law, or by the enforcement of any assessment or penalty, or otherwise, all such liability of incorporators, stockholders, directors and officers, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered, or his registered assigns, as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary. This bond shall not become or be valid or obligatory for any purpose until the authentication certificate hereon shall have been signed by the Trustee. 20 IN WITNESS WHEREOF, FALL RIVER GAS COMPANY has caused these presents, which are intended to take effect as a sealed instrument, to be executed in its corporate name by its President or one of its Vice Presidents and its Treasurer or one of its Assistant Treasurer, under its corporate seal or a facsimile thereof, attested by its Clerk or one of its Assistant Clerks, all as of February , 1990. FALL RIVER GAS COMPANY By --------------------------------- President (Corporate Seal) By --------------------------------- Treasurer Attest: - - ----------------------------- Assistant Clerk 21 [FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE] This is one of the bonds of the series designated therein, described in the within mentioned Indenture. THE FIRST NATIONAL BANK OF BOSTON, As Trustee By --------------------------------- Authorized Signatory [FORM OF ASSIGNMENT] For value received, the undersigned hereby sells, assigns, and transfers unto (whose Taxpayer Identifying Number is ) the within bond, and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said bond on the books of the Company, with full power of substitution in the premises. Dated: In the presence of: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. [FORM OF ENDORSEMENT OF GUARANTOR] ENDORSEMENT OF GUARANTOR This First Mortgage Bond, 9.44% Series due 2020 is entitled to the benefits of the Guaranty and Negative Pledge Agreement dated February 20, 1990 by and among Fall River Gas Company, Fall River Gas Appliance Company, Inc. and Allstate Life Insurance Company. Dated FALL RIVER GAS APPLIANCE COMPANY, INC. ------------------ By ----------------------------------- President 22 Section 1.02. REDEMPTION PROVISIONS FOR BONDS OF THE 2020 SERIES. The Bonds of the 2020 Series shall be subject to redemption prior to maturity as a whole or in part at the option of the Company at any time on or after February 15, 2005 and prior to maturity as set forth in the form of the Bonds of the 2020 Series set forth in Section 1.01 hereof. Notwithstanding the provisions of Section 8.05 of the Original Indenture, the Company and the Trustee agree that no trust moneys (as such term is defined in the Original Indenture) may be applied by the Trustee at any time to the redemption prior to maturity of any Bonds of the 2020 Series. Whenever less than all of the outstanding Bonds of the 2020 Series are to be redeemed, the principal amount of such Bonds to be redeemed shall be prorated in units of $1,000 each among the holders of the Bonds of the 2020 Series in the proportion that their respective holdings bear to the aggregate principal amount of Bonds of the 2020 Series outstanding on the date of selection. Section 1.03. RESTRICTION ON PAYMENT OF DIVIDENDS ON COMMON STOCK. The Company shall not (a) declare or pay any dividend (other than dividends payable in Common Stock of the Company) or make any other distribution on any shares of Common Stock, (b) make any expenditures for the purchase, redemption or other retirement for a consideration of any shares of capital stock of the Company (other than in exchange for, or from the proceeds of, other and new shares of capital stock of the Company and other than any class of preferred stock required to be purchased, redeemed or otherwise retired for any sinking fund or purchase fund for such class of stock), or (c) make any loans or advances to or investments in any securities of any subsidiary of the Company (other than from the proceeds of new shares of capital stock of the Company), if the aggregate amount of all such dividends, distributions, expenditures, loans, advances and investments made since December 31, 1989, would exceed the aggregate amount of the net income of the Company accumulated after December 31, 1989, plus the sum of $2,000,000. Net income of the Company for the purpose of this Section shall mean (a) the total operating revenues of the Company, less the total operating expenses, taxes (including, without limitation, income, excess profits and other taxes based on or measured by income or undistributed earnings or income), interest charges and other appropriate items, including provision for maintenance and provision for retirements, depreciation or 23 obsolescence, which shall be the amount actually charged by the Company on its books of account, but in respect of depreciable gas utility property not subject to prior liens shall not be less than the minimum provision for depreciation, as defined in Section 1.33 of the Original Indenture, as amended to date, (b) other net non-operating income and (c) other income (less any applicable expenses) of the Company and after provision for all dividends accrued on any outstanding stock of the Company having preference over the Common Stock as to dividends, assets or otherwise, all of the foregoing determined in accordance with sound accounting practice, PROVIDED, HOWEVER, that in determining the net income of the Company for the purposes of this Section no deduction or adjustment shall be made for or in respect of any charges or credits which under sound accounting practice are not appropriate charges or credits in determining net income and, without limiting the generality of the foregoing, no deduction or adjustment shall be made for or in respect of (a) profits or losses from sales, abandonment or other disposition of property or other capital assets or from the reacquisition of any securities of the Company, or taxes on or in respect of any such profits; (b) any change in or adjustment of the book value of any assets owned by the Company; (c) any earned surplus adjustment (including tax adjustments) applicable to any period prior to January 1, 1990; or (d) amortization, retirement or elimination of gas utility plant adjustment accounts or intangibles. A subsidiary of the Company for the purposes of this Section shall mean any corporation a majority of the stock of which having ordinary voting power not contingent upon a condition of default is owned by the Company or any other subsidiary of the Company. Section 1.04. INDEBTEDNESS. Unless the holders of two-thirds in principal amount outstanding of the Bonds of the 2020 Series shall otherwise generally or specifically as to a particular instance consent thereto in writing, (a) the Company shall not permit its aggregate indebtedness for borrowed money at any time to exceed 65% of the Company's total capitalization and (b) the Company shall not at any time incur or become liable for any bonded indebtedness, including, but not limited to, the issuance of any Bonds, unless the net income available for interest of the Company for a period of 12 consecutive calendar months within the 15 calendar months immediately preceding the month in which the Company proposes to incur or become liable for such indebtedness is at least two times the fixed annual interest 24 charges on all indebtedness for borrowed money of the Company, including such bonded indebtedness. As used herein, the following terms shall have the following respective meanings: The term "total capitalization" shall mean at any time the sum of (a) the principal amount of all outstanding indebtedness of the Company for borrowed money, (b) the aggregate amount of par or stated capital represented by all issued and outstanding capital stock of all classes of the Company having preference as to dividends or upon liquidation over its common stock, if any, and (c) the common stock equity of the Company. The term "common stock equity" shall be the sum of the amount of par or stated capital represented by all issued and outstanding common stock (excluding treasury stock), all premiums on capital stock of the Company of all classes, and the surplus (including retained earnings and paid-in or capital surplus) of the Company, less (a) any unamortized debt discount and expense, unamortized extraordinary property losses and capital stock discount and expense set forth on the asset side of the balance sheet, and (b) the excess, if any, of the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Company on any outstanding shares of the Company having a preference as to dividends or upon liquidation over the common stock, over the aggregate amount of par or stated capital represented by any such outstanding shares; PROVIDED, HOWEVER, that no deduction shall be made in the determination of common stock equity for any of the amounts or items referred to in clauses (a) and (b) of this paragraph which are, at the time of the determination of the common stock equity, being amortized or provided for by reserve. The term "indebtedness for borrowed money" shall include all indebtedness of the Company for borrowed money (whether long or short term) of every kind and nature and any guaranty of the indebtedness of another but shall not include: (1) Current liabilities of the Company (other than for money borrowed) incurred in the ordinary course of its 25 business; (2) Indebtedness of the Company for taxes, assessments or governmental charges or levies if the same shall not at the time be due and payable or can be paid thereafter without penalty or shall concurrently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books reserves deemed by it adequate with respect thereto; (3) Short term indebtedness for borrowed money incurred from time to time for purposes of purchasing gas supplies, but only to the extent that the Company's Cost of Gas Adjustment Clause then reflects an under-collection of allowable costs equal to or greater than the outstanding balance of such indebtedness; and provided further, however, that the exclusion within this paragraph (3) shall not apply if such indebtedness, if otherwise included within the definition of "indebtedness for borrowed money," would cause the Company's aggregate indebtedness for borrowed money to exceed 70% of the Company's total capitalization; or (4) Judgments or awards in respect of which the Company shall in good faith be prosecuting an appeal or proceedings for review and in respect of which it shall have secured a subsisting stay of execution or sale pending such appeal of proceedings. The term "net income available for interest" of the Company shall mean (a) the total operating revenues of the Company, less the total operating expenses, taxes (excluding income, excess profits and other taxes based on or measured by income or undistributed earnings or income), and other appropriate items, including provision for maintenance and provision for retirements, depreciation or obsolescence, which shall be the amount actually charged by the Company on its books of account but in respect of depreciable gas utility property not subject to prior liens shall not be less than the minimum provision for depreciation, as defined in Section 1.33 of the Original Indenture, as amended to date, (b) other net non-operating income and (c) other income (less any applicable expenses), of the Company, all of the foregoing determined in accordance with sound accounting practice; provided, however, that in determining the net income of the Company for the 26 purposes of this Section no deduction or adjustment shall be made for or in respect of any charges or credits which under sound accounting practice are not appropriate charges or credits in determining net income and, without limiting the generality of the foregoing, no deduction or adjustment shall be made for or in respect of (a) profits or losses from sales, abandonment or other disposition of property or other capital assets or from the reacquisition of any securities of the Company, or taxes on or in respect of any such profits; (b) any change in or adjustment of the book value of any assets owned by the Company; (c) any earned surplus adjustment (including tax adjustments) applicable to any period prior to January 1, 1990; or (d) amortization, retirement or elimination of gas utility plant adjustment accounts or intangibles. Section 1.05. DEPRECIATION. So long as any of the Bonds of the 2020 Series are outstanding (whether or not any Bonds of the 1996 Series are outstanding), the term "minimum provision for depreciation" shall have the meaning defined in Section 1.33 of the Original Indenture as modified by Clause (6) of Article Two of the First Supplemental Indenture as to the period during which any Bonds of the 1980 Series were outstanding. SECTION 1.06. DURATION OF EFFECTIVENESS OF ARTICLE ONE. This Article shall be of force and effect only so long as any Bonds of the 2020 Series are outstanding. ARTICLE TWO Principal Amount of Bonds of the 2020 Series Presently to be Issued Section 2.01. The total aggregate principal amount of Bonds of the 2020 Series presently to be issued and outstanding under the provisions of and secured by the Indenture, will be Six Million Five Hundred Thousand Dollars ($6,500,000). Additional Bonds, other than Bonds of the 1996 Series and Bonds of the 2020 Series or of any other series established after the execution and delivery of this Twelfth Supplemental Indenture may from time to time be authenticated, delivered and issued pursuant to the terms of the Indenture, except that no further Bonds shall be issued pursuant to the provisions of the second paragraph of Section 5.01 of the Original Indenture inserted therein by the provisions of Article Two, Clause (9) of the First Supplemental Indenture. 27 Section 2.02. Upon the execution and delivery of this Twelfth Supplemental Indenture, or from time to time thereafter, Six Million Five Hundred Thousand Dollars ($6,500,000) principal amount of Bonds of the 2020 Series may be executed by the Company and delivered to the Trustee and shall thereupon be authenticated and delivered by the Trustee to and upon the written order of the Company, upon compliance by the Company with the provisions of Article Five of the Original Indenture. ARTICLE THREE Miscellaneous Section 3.01. This Twelfth Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture as supplemented and modified by the First Supplemental Indenture and supplemented by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Supplemental Indentures, and shall form a part thereof, and the Original Indenture and the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Supplemental Indentures are hereby confirmed. Except to the extent inconsistent with the express terms hereof, all of the provisions, terms, covenants and conditions of the Original Indenture as supplemented and modified by the First Supplemental Indenture and supplemented by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Supplemental Indentures shall be applicable to the Bonds of the 2020 Series to the same extent as if specifically set forth herein. All terms used in this Twelfth Supplemental Indenture shall be taken to have the same meaning as in the Original Indenture as so supplemented and modified except in cases where the context clearly indicates otherwise. Section 3.02. All recitals in this Twelfth Supplemental Indenture are made by the Company only and not by the Trustee; and all of the provisions contained in the Original Indenture as so supplemented and modified in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect hereof as fully and with like effect as if set forth herein in full. Section 3.03. The Company covenants that it is lawfully seized and possessed at the date of execution of this Twelfth 28 Supplemental Indenture of all the trust estate described in this Twelfth Supplemental Indenture, except as specifically otherwise stated in this Twelfth Supplemental Indenture, and that all the trust estate so described is free and clear of any lien other than the lien of the Indenture and permitted encumbrances; that the Company will warrant and forever defend all the trust estate so described to the Trustee against the claims of all persons whomsoever except as in the Indenture specifically otherwise stated, that it will maintain and preserve the lien of the Indenture so long as any of the Bonds issued under the Indenture are outstanding; and that it has good right and lawful authority to subject all the trust estate so described to the lien of the Indenture as provided in and by the terms of the Indenture. Section 3.04. Notwithstanding any provisions of the Indenture or the Bonds of the 2020 Series, so long as the original registered holder or any subsequent registered holder of Bonds of the 2020 Series which is a bank, insurance company or other institutional investor shall hold any of the Bonds of the 2020 Series, all payments of interest on the Bonds of the 2020 Series, and all payments on account of principal or premium, if any, shall be made directly to each such registered holder or its nominee at such address as may from time to time be furnished by such holder in writing without surrender or presentation of such Bonds of the 2020 Series to the Trustee (except that such holder shall surrender a Bond within a reasonable period of time following receipt of payment, by redemption or otherwise, of such Bond of the 2020 Series in whole) and with respect to each such original holder such payments shall be made in accordance with the provisions of any written agreement between such original holder and the Company which shall have been communicated and consented to by the Trustee. The Trustee hereby consents to the method of payment described in "Schedule I" to the Bond Purchase Agreement dated February 20, 1990 between the Company and such original holder. The Trustee also consents to the provisions of sections 9.1, 9.2 and 9.3 of said Bond Purchase Agreement and agrees that if a mutilated, destroyed or lost Bond of the 2020 Series was held by the original holder or any other institutional holder of recognized standing and sound financial condition reasonably satisfactory to the Company or any nominee for the original holder or such other institutional holder (a) an agreement of indemnity reasonably satisfactory to the Company from such original holder or such other institutional holder, as the case 29 may be, shall constitute indemnity satisfactory to it for the purposes of the Indenture and (b) the Trustee will look only to the Company for reimbursement of its expenses incurred in connection with such replacement. Section 3.05. This Twelfth Supplemental Indenture may be executed in several counterparts and on separate counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts, or as many of them as the Company and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument. 30 IN WITNESS WHEREOF, Fall River Gas Company has caused this Twelfth Supplemental Indenture to be signed in its corporate name and behalf by its President or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers and its corporate seal to be hereunto affixed and attested by its Clerk or one of its Assistant Clerks, and The First National Bank of Boston in token of its acceptance of the trust hereby created has caused this Twelfth Supplemental Indenture to be signed in its name and behalf by one of its ___________________________, and its corporate seal to be hereunto affixed and attested by one of its ______________________ , all on the _____ day of February, 1990, but as of the day and year first above written. FALL RIVER GAS COMPANY By --------------------------------- , President and By ----------------------------- , Treasurer Attest: (Corporate Seal) - - ------------------------------ , Assistant Clerk THE FIRST NATIONAL BANK OF BOSTON By --------------------------------- [Title] Attest: (Corporate Seal) - - ----------------------------------- [Title] 31 COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF SUFFOLK ) SS.: At Boston on this ___ day of February, 1990, before me appeared _________ and _______________, to me personally known, who, being by me duly sworn, did say that they are the President and Treasurer, respectively, of the Fall River Gas Company, and that the seal affixed to the foregoing instrument is the corporate seal of said Company, and that the said instrument was signed and sealed by them on behalf of said Company by authority of its Board of Directors, and the said ________________and _______________acknowledged said instrument to be the free act and deed of said Company. ---------------------------------- Notary Public My commission expires: (Notarial Seal) COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF SUFFOLK ) SS.: At Boston on this____ day of February, 1990, before me appeared _________, to me personally known, who, being by me duly sworn, did say that he is _______ a of The First National Bank of Boston, and that the seal affixed to the foregoing instrument is the corporate seal of said Bank, and that the said instrument was signed and sealed on behalf of said Bank by authority of its Board of Directors and the said _____________acknowledged said instrument to be the free act and deed of said Bank. ---------------------------------- Notary Public My commission expires: (Notarial Seal) EX-4.D 4 13TH SUPPLEMENTAL INDENTURE 09/19/96 1 Exhibit 4(d) ------------ - - ------------------------------------------------------------------------------- FALL RIVER GAS COMPANY TO STATE STREET BANK AND TRUST COMPANY, SUCCESSOR IN INTEREST TO THE FIRST NATIONAL BANK OF BOSTON, Trustee ---------- THIRTEENTH SUPPLEMENTAL INDENTURE dated as of September 19, 1996 Supplementing the Indenture of First Mortgage dated as of December 1, 1952, the First Supplemental Indenture dated as of January 1, 1955, the Second Supplemental Indenture dated as of September 1, 1957, the Third Supplemental Indenture dated as of December 1, 1957, the Fourth Supplemental Indenture dated as of February 1, 1958, the Fifth Supplemental Indenture dated as of May 1, 1959, the Sixth Supplemental Indenture dated as of May 1, 1961, the Seventh Supplemental Indenture dated as of November 1, 1961, the Eighth Supplemental Indenture dated as of November 1, 1966 the Ninth Supplemental Indenture dated as of June 30, 1971 the Tenth Supplemental Indenture dated as of June 1, 1981 the Eleventh Supplemental Indenture dated as of December 15, 1989 and the Twelfth Supplemental Indenture dated as of December 20, 1989 ---------- This is a Mortgage of Personal Property as well as a Mortgage upon Real Estate - - ------------------------------------------------------------------------------ 2 THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of September 19, 1996, between FALL RIVER GAS COMPANY, formerly named Fall River Gas Works Company, a corporation organized and existing under the laws of The Commonwealth of Massachusetts and having its principal place of business in the City of Fall River in said Commonwealth (hereinafter called the "Company") and STATE STREET BANK AND TRUST COMPANY, a trust company organized and existing under the laws of The Commonwealth of Massachusetts (successor in interest to The First National Bank of Boston, successor by merger to Old Colony Trust Company), having its principal place of business in the City of Boston in The Commonwealth of Massachusetts (hereinafter called the "Trustee"). WHEREAS, the Company has heretofore executed and delivered to Old Colony Trust Company, trustee (State Street Bank and Trust Company, successor trustee, successor in interest to The First National Bank of Boston, successor by merger to Old Colony Trust Company), an Indenture of First Mortgage dated as of December 1, 1952 (hereinafter called the "Original Indenture"), a First Supplemental Indenture dated as of January 1, 1955 (hereinafter called the "First Supplemental Indenture"), a Second Supplemental Indenture dated as of September 1, 1957 (hereinafter called the "Second Supplemental Indenture"), a Third Supplemental Indenture dated as of December 1, 1957 (hereinafter called the "Third Supplemental Indenture"), a Fourth Supplemental Indenture dated as of February 1, 1958 (hereinafter called the "Fourth Supplemental Indenture"), a Fifth Supplemental Indenture dated as of May 1, 1959 (hereinafter called the "Fifth Supplemental Indenture"), a Sixth Supplemental Indenture dated as of May 1, 1961 (hereinafter called the "Sixth Supplemental Indenture"), a Seventh Supplemental Indenture dated as of November 1, 1961 (hereinafter called the "Seventh Supplemental Indenture"), an Eighth Supplemental Indenture dated as of November 1, 1966 (hereinafter called the "Eighth Supplemental Indenture"), a Ninth Supplemental Indenture dated as of June 30, 1971 (hereinafter called the "Ninth Supplemental Indenture"), a Tenth Supplemental Indenture dated as of June 1, 1981 (hereinafter called the "Tenth Supplemental Indenture"), an Eleventh Supplemental Indenture dated as of December 15, 1989 (hereinafter called the "Eleventh Supplemental Indenture") and a Twelfth Supplemental Indenture dated as of December 20, 1989 (hereinafter called the "Twelfth Supplemental Indenture") to secure, as provided therein, its bonds (therein and herein called the "Bonds"), to be known generally as its "First Mortgage Bonds", and to be issued in one or more series as provided in the Original Indenture; and WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate principal amount of First Mortgage Bonds, 4 1/4% Series due 1972, of the Company have been heretofore issued, all of which Bonds were retired contemporaneously with the issue and sale of First Mortgage Bonds, 3 3/4% Series due 1980, referred to below; and WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate principal amount of First Mortgage Bonds, 3 3/4% Series due 1980 (in the First Supplemental Indenture and herein called the "Bonds of the 1980 Series"), of the Company have been heretofore issued, all of which Bonds have been retired; and Exhibit A --------- -1- 3 WHEREAS, One Million Dollars ($1,000,000) aggregate principal amount of First Mortgage Bonds, 5 1/4% Series due 1980 (in the Second Supplemental Indenture and herein called the "Bonds of the Second 1980 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, One Million Two Hundred Thousand Dollars ($1,200,000) aggregate principal amount of First Mortgage Bonds, 5 1/4% Series due 1986 (in the Sixth Supplemental Indenture and herein called the "Bonds of the 1986 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, Three Million Two Hundred Thousand Dollars ($3,200,000) aggregate principal amount of First Mortgage Bonds, 8 3/4% Series due 1996 (in the Ninth Supplemental Indenture and herein called the "Bonds of the 1996 Series") have heretofore been issued, all of which Bonds have been retired; and WHEREAS, Three Million Four Hundred Thousand Dollars ($3,400,000) aggregate principal amount of First Mortgage Bonds, 15% Series due 1993 (in the Tenth Supplemental Indenture and herein called the "Bonds of the 1993 Series") of the Company have been heretofore issued, all of which Bonds have been retired; and WHEREAS, Six Million Five Hundred Thousand Dollars ($6,500,000) aggregate principal amount of First Mortgage Bonds, 9.44% Series due 2020 (in the Twelfth Supplemental Indenture and herein called the "Bonds of the 2020 Series") have heretofore been issued of which Six Million Five Hundred Thousand Dollars ($6,500,000) are presently outstanding; and WHEREAS, the Board of Directors of the Company has established under Section 3.02 of the Original Indenture a new series of Bonds to be designated First Mortgage Bonds, 7.99% Series due 2026 (hereinafter referred to as "Bonds of the 2026 Series") and has authorized the issue of said Bonds of the 2026 Series in the aggregate principal amount of Seven Million Dollars ($7,000,000) pursuant to the provisions of Article Two of this Thirteenth Supplemental Indenture; and WHEREAS, Section 18.01 of the Original Indenture provides, among other things, that the Company, when authorized by a resolution of the Board of Directors, and the Trustee, from time to time and at any time, subject to the restrictions in the Original Indenture, as supplemented and modified, contained, may, and when so required by the Original Indenture, shall, enter into indentures supplemental to the Original Indenture and which thereafter shall form a part thereof, for the purposes, among others, of (a) mortgaging, pledging, conveying, transferring or assigning to the Trustee, and subjecting to the lien of the Original Indenture additional properties acquired by the Company, (b) adding to the Original Indenture other covenants and agreements to be thereafter observed by the Company, (c) providing for the creation of any Series of Bonds, designating the series to be created and specifying the form and provisions of the Bonds of such series, and (d) changing, altering, modifying, varying, or Exhibit A --------- -2- 4 eliminating any of the terms, provisions, restrictions or conditions of the Original Indenture, subject as set forth therein; and WHEREAS, Section 18.02 of the Original Indenture provides, among other things, that the Company, when authorized by a resolution of the Board of Directors, and the Trustee, may, from time to time and at any time, and subject as set forth in said Section 18.02, enter into an indenture or indentures supplemental to the Original Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Original Indenture or of any supplemental indenture and modifying certain rights and obligations of the Company and certain rights of the holders of any of the Bonds and coupons; and WHEREAS, the Board of Directors and the Stockholders of the Company by resolutions duly adopted authorized to the extent required by law the execution of this Thirteenth Supplemental Indenture for the purposes of (a) subjecting to the lien of the Original Indenture the additional properties acquired by the Company since the execution of the Twelfth Supplemental Indenture, (b) creating the Bonds of the 2026 Series, designating the series created and specifying the form and the provisions of the Bonds of such series, and (c) changing certain of the provisions of a supplemental indenture (the Original Indenture, as supplemented and modified by the First through the Twelfth Supplemental Indentures, inclusive, and as supplemented by this Thirteenth Supplemental Indenture being herein sometimes called the "Indenture"); and WHEREAS, all acts and proceedings required by law and by the Certificate of Organization and Certificate of Incorporation and by-laws of the Company necessary to secure the payment of the principal of and interest and premium, if any, on the Bonds of the 2026 Series, to make the Bonds of the 2026 Series to be issued hereunder, when executed by the Company, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal obligations of the Company, and to constitute the Indenture a valid and binding mortgage for the security of the Bonds, in accordance with its and their terms, have been done and taken; and the execution and delivery of this Twelfth Supplemental Indenture and the issue of the Bonds of the 2026 Series have been in all respects duly authorized: NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of and premium, if any, and interest on all Bonds at any time issued and outstanding under the Indenture, according to their tenor, purport and effect, to confirm the lien of the Indenture upon property purchased, constructed or otherwise acquired by the Company since the date of execution of the Twelfth Supplemental Indenture and to secure the performance and observance of all the covenants and conditions herein and in the Bonds and in the Indenture contained, and to declare the terms and conditions upon and subject to which the Bonds of the 2026 Series are and are to be issued and secured, and for and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds of the 2026 Series by the holders thereof, and of the sum of Ten Dollars ($10) duly paid to the Company by the Trustee, at or before the ensealing and delivery hereof, and Exhibit A --------- -3- 5 for other valuable considerations, the receipt whereof is hereby acknowledged, the Company has executed and delivered this Thirteenth Supplemental Indenture, and by these presents, does grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, pledge, set over and confirm unto STATE STREET BANK AND TRUST COMPANY, Trustee, its successors in trust and its and their successors and assigns, all property real, personal or mixed described in the Original Indenture and the First through the Twelfth Supplemental Indentures and thereby conveyed or mortgaged or intended so to be, including all such property acquired since the execution and delivery of the Twelfth Supplemental Indenture which by the terms of the Indenture is subjected or is intended to be subjected to the lien thereof, including, without limiting the generality of the foregoing, the following described property: CLAUSE I. All of the lands, gas plants and systems, gas works, buildings, structures, garages, sheds, repair shops, storage houses, erections and constructions now or hereafter placed on or under any of the real estate described in Article Twenty of the Original Indenture or in the granting clauses of the First through the Twelfth Supplemental Indentures or on or under any part hereof, or on or under any real estate thereafter acquired by the Company, with their fixtures and appurtenances, including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Twelfth Supplemental Indentures. CLAUSE II. Also all other real estate and all interests therein now owned or hereafter acquired by the Company including (but without in any way limiting the generality of the foregoing) the real estate and interests therein more particularly described in Schedule A annexed hereto. CLAUSE III. All of the machinery, engines, boilers, furnaces, water wells, motors, compressors, conduits, mains, gates, tubes, drains, switchboards, services, pumps, pumping stations, gas holders, reservoirs, expansion tanks, gas mains and pipes, tunnels, subways, bridges, service pipes, pipe lines, fittings, reducers, regulators, drips, valves, connections, implements, meters, tools, gas, mechanical and all other appliances, instruments, apparatus, appurtenances and facilities now owned by the Company or hereafter acquired by it, and constituting or to constitute parts of its gas storage plant or gas distributing system or the equipment thereof or used or provided for use in or appurtenant to the manufacture, transportation, storage, distribution and sale of manufactured gas, natural gas, propane gas, butane gas or a mixture of any thereof (other than excepted property as hereinafter defined), and there is included herein (but not to the exclusion of any other property now owned or hereafter acquired by the Company), the gas manufacturing plants, gas storage plants and gas distributing systems Exhibit A --------- -4- 6 owned by the Company, including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Twelfth Supplemental Indentures. CLAUSE IV. All easements, leases, rights, powers, privileges, indeterminate permits, water and riparian rights, and all interests therein, dams and dam sites, franchises, licenses, rights of way, immunities and concessions of the Company, whether granted or acquired by virtue of its Charter, or by virtue of the acts, resolutions, concessions, ordinances, contracts, or other grants of any municipality, county, or other political subdivision or of any private person or body corporate or otherwise, howsoever conferred, now owned or hereafter to be acquired by the Company, to lay, erect, construct, maintain and repair any plants or other property including conduits, mains, pipes, pipe lines, pumping, compressor, regulator and measuring stations, meters, and other equipment to vend gas, within the limits of any incorporated village or city, or elsewhere (other than excepted property as hereinafter defined), and there is included herein (but not to the exclusion of any other property now owned or hereafter acquired by the Company) any indeterminate permits, franchises, permits, grants, rights of way and easements owned by the Company for the transmission and distribution of manufactured gas, natural gas, propane gas, butane gas or a mixture of any thereof, and the laying, erection, construction, maintenance and repair of conduits, mains, pipes, pipe lines, pumping, compressor, regulator and measuring stations, meters and other equipment for that purpose, and wheresoever situated (but not herein specifically excepted), including (but without in any way limiting the generality of the foregoing) the properties and rights more particularly described in said Article Twenty of the Original Indenture, in Schedule A of the Second Supplemental Indenture or in the granting clauses of the First through the Twelfth Supplemental Indentures. CLAUSE V. Also all property, real, personal and mixed (except as herein expressly excepted), of every nature and description and wheresoever situated, whether or not herein specifically described, and all interests therein, now owned or hereafter acquired by or belonging to the Company or to which it now is, or may at any time hereafter be, in any manner entitled at law or in equity. CLAUSE VI. Also all renewals, replacements, accessions, additions, improvements, betterments, developments, extensions, and enlargements, hereafter made, constructed or acquired by the Company to, of or upon any or all such properties, equipment, systems and/or plants and all property used thereby or useful therefor or incidental thereto or connected therewith now or at any time hereafter subject to the lien of the Indenture, or required so to be by any provision Exhibit A --------- -5- 7 herein contained, and also all franchises, permits and similar rights acquired in connection therewith. CLAUSE VII. Also any and all property of every kind or description (including any property which may be expressly excepted by Clause IX of these granting clauses) which may at any time or from time to time after the date of this Thirteenth Supplemental Indenture by delivery or by writing of any kind be conveyed, mortgaged, pledged, assigned or transferred to the Trustee by the Company, or by any person, firm, association or corporation with the consent of the Company, or otherwise as expressly permitted by the terms of the Indenture, and accepted by the Trustee, to be held as part of the mortgaged property; and the Trustee is hereby authorized to accept and receive any such property and any such conveyance, mortgage, pledge, assignment or transfer as and for additional security hereunder, and to hold and apply any and all such property subject to and in accordance with the terms and provisions upon which such delivery, conveyance, mortgage, pledge, assignment or transfer shall be made, not inconsistent with the terms of the Indenture. CLAUSE VIII. TOGETHER with all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid properties or any part thereof, with the reversion and reversions, remainder and remainders, tolls, rents, revenues, issues, income, product and profits thereof, and all the estate, rights, title, interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid properties and every part and parcel thereof. SUBJECT, HOWEVER, to the following (none of which, in the opinion of the Company, materially interferes with the conduct of its business): the reservations, exceptions, conditions, limitations and restrictions contained in the several deeds, franchises and contracts or other instruments through which the Company acquired or claims title to or enjoys the use of the mortgaged property; such servitudes, easements, rights and privileges in, over, on, under or through said properties as have been granted by the Company to other persons; statutory and municipal requirements relating to land and buildings; the rights of the public and others in streets, roads and highways, open or unopen, or laid out but unopened, crossing or bounding any of the said parcels; the rights of The Commonwealth of Massachusetts and of the United States of America, in and to any streams, rivers or bodies of water abutting any of the said parcels; the rights of electric, gas, water, telephone and telegraph companies (other than the Company) to maintain and operate pole lines, conduits, and gas and water mains over or through any of the said parcels or on or in the streets, roads or highways abutting thereon as the same may now or hereafter be located; any easements visible on the ground but not evidenced by recorded agreements or grants; and permitted encumbrances as defined in Section 1.40 of the Original Indenture; and, with respect to any property which the Company may hereafter construct or acquire, to any liens then in effect thereon or placed thereon for Exhibit A --------- -6- 8 unpaid portions of the purchase money at the time of such acquisition, to the extent permitted by Section 9.10 of the Original Indenture. CLAUSE IX. EXCEPTED PROPERTY EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from the Indenture and from the lien and operation thereof: (a) any and all property expressly excepted and excluded from the Original Indenture and from the lien and operation thereof by paragraph A and all property of the character expressly excepted and excluded by paragraph B through I of Clause IX of the Granting Clauses of the Original Indenture; (b) all property, if any, expressly excepted from the lien of the Indenture in the descriptions of the property contained in Schedule A of the Second Supplemental Indenture; (c) any and all property expressly excepted from the lien of the Indenture in the Granting Clauses of the First through the Twelfth Supplemental Indentures; (d) any and all property expressly excepted in the Granting Clauses of this Thirteenth Supplemental Indenture; and (e) all property which prior to the execution and delivery of this Thirteenth Supplemental Indenture has been released by the Trustee or otherwise disposed of by the Company free from the lien of the Indenture in accordance with the provisions thereof. If upon the happening of any default as defined in Article Twelve of the Original Indenture, the Trustee or a receiver or trustee shall enter upon and take possession of the trust estate, the Trustee or such receiver or trustee may, to the extent permitted by law, at the same time likewise take possession of any and all of the property specifically excepted under the heading "Excepted Property" of Granting Clause IX of the Original Indenture, other than paragraph G thereof, together with any and all of the property specifically excepted in the descriptions of the property contained in Schedule A of the Second Supplemental Indenture, and any and all property expressly excepted in the Granting Clauses of the First through the Twelfth Supplemental Indentures and in the Granting Clauses of this Thirteenth Supplemental Indenture, then on hand and use and administer the same to the same extent as if such property were part of the trust estate, unless and until such default shall be remedied or waived and possession of the trust estate restored to the Company. TO HAVE AND TO HOLD all of the property, real, personal and mixed, and all and singular the lands, properties, estates, rights, franchises, privileges and appurtenances hereby granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, Exhibit A --------- -7- 9 mortgaged, pledged, set over or confirmed, or intended so to be, unto the Trustee and its successors in trust and to its and their assigns, forever. BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit, security and protection of those who from time to time shall hold the Bonds and coupons, or any of them, authenticated and delivered under the Indenture, and duly issued by the Company, without any discrimination, preference or priority of any one Bond or coupon over any other by reason or priority in the time of issue, sale or negotiation thereof or otherwise, except as provided in Section 12.28 of the Original Indenture, so that, subject to said Section 12.28 each and all of said Bonds and coupons shall have the same right, lien and privilege under the Indenture and shall be equally and proportionately secured thereby (except as any sinking, depreciation or other analogous fund established in accordance with the provisions of the Indenture may afford additional security for the Bonds of any particular series), with the same effect as if all of the Bonds and coupons had been issued, sold and negotiated simultaneously on the date of the delivery of the Original Indenture. THE COMPANY HEREBY DECLARES that it holds and will hold and apply all property and rights, described in paragraph G of Clause IX of the Original Indenture as specifically reserved and excepted, upon the trusts as set forth in the Indenture, and as the Trustee (or any purchaser upon any sale of the mortgaged property) shall for such purpose direct from time to time to the fullest extent permitted by law or in equity and by any instruments creating the same, as fully as if the same could be and had been hereby granted, conveyed, mortgaged, pledged, transferred and assigned to and vested in the Trustee. It is hereby covenanted, declared and agreed by and between the parties hereto that all Bonds and coupons, if any, are to be authenticated, delivered and issued and that all property subject or to become subject to the Indenture is to be held, subject to the further covenants, conditions, uses and trusts set forth in the Indenture, and the Company for itself and its successors or assigns does hereby covenant and agree to and with the Trustee and its successor or successors in such trust, for the benefit of those who shall hold said Bonds, or coupons, or any of them, as follows: ARTICLE ONE. BONDS OF THE 2026 SERIES AND CERTAIN PROVISIONS RELATING THERETO. Section 1.01. A. TERMS OF BONDS OF THE 2026 SERIES. There shall be and hereby is created a new series of Bonds, known as and entitled "First Mortgage Bonds, 7.99% Series due 2026" (herein referred to as the "Bonds of the 2026 Series"). The principal amount of the Bonds of the 2026 Series shall be and hereby is limited, except for duplicate Bonds authenticated and delivered pursuant to Section 3.12 of the Original Indenture, to Seven Million Dollars ($7,000,000) in aggregate principal amount. Exhibit A --------- -8- 10 The definitive Bonds of the 2026 Series shall be registered Bonds without coupons of the denomination of $100,000 or any multiple thereof. The Bonds of the 2026 Series will, notwithstanding the provisions of Section 3.05 of the Original Indenture, be dated and bear interest from the date of initial issue and payment to the Company by the purchaser or purchasers thereof. All Bonds of the 2026 Series shall mature September 15, 2026, and will bear interest at the rate of 7.99% per annum until the payment of the principal thereof, such interest to be payable on March 15, 1997 and thereafter semi-annually on March 15 and September 15 in each year. The principal of, the premium, if any, and interest on, the Bonds of the 2026 Series will be paid in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, at the principal corporate trust office of the Trustee in Canton, Massachusetts. For purposes of this Thirteenth Supplemental Indenture and the Bonds of the 2026 Series, the term "premium" shall include any "Make Whole Amount", as the latter term is defined in such Bonds. The definitive Bonds of the 2026 Series, notwithstanding the provisions of Section 3.04 of the Original Indenture, may be printed, typed or otherwise reproduced in any manner satisfactory to the Trustee without the use of engraving or steel engraved borders. As permitted by the provisions of Section 3.10 of the Original Indenture and upon payment at the option of the Company of the charges provided in Section 3.11 of the Original Indenture, Bonds of the 2026 Series may be exchanged for a new Bond or Bonds of different authorized denominations of like aggregate principal amount. The Trustee hereunder shall, by virtue of its office as such Trustee, be a paying agent of the Company for the purpose of the payment of the principal of and premium, if any, and interest on the Bonds of the 2026 Series and the registrar and transfer agent of the Company for the purpose of registering and transferring Bonds of the 2026 Series. B. FORM OF BONDS OF THE 2026 SERIES The Bonds of the 2026 Series and the Trustee's authentication certificate to be executed on all of the Bonds of said series, shall be in substantially the following forms, respectively: Exhibit A --------- -9- 11 [FORM OF BOND OF THE 2026 SERIES] This Bond has not been registered under the Securities Act of 1933 and may not be sold, assigned or transferred in the absence of such registration or a written opinion of counsel reasonably satisfactory to the Company to the effect that such sale, assignment or transfer is not a transaction requiring registration of this Bond under the Securities Act of 1933. No. RG $ --------------- ----------------- FALL RIVER GAS COMPANY FIRST MORTGAGE BOND, 7.99% SERIES DUE 2026 DUE SEPTEMBER 15, 2026 FALL RIVER GAS COMPANY, a Massachusetts corporation (hereinafter sometimes called the "Company"), for value received, hereby promises to pay to _________, or registered assigns, ______________Dollars ($___________ ) on September 15, 2026, and to pay to said payee, or registered assigns, interest hereon from the date hereof at the rate of 7.99% per annum, semi-annually on the fifteenth day of March and September in each year until payment of the principal hereof. To the extent permitted by law, interest shall be payable on any overdue principal or interest at the rate of 9.99% per annum; interest at the rate of 9.99% per annum shall accrue from the date such principal or interest was due and payable, disregarding for this purpose any period of grace used in determining the existence of a default under the Indenture (as hereinafter defined). The principal of and the premium, if any, and interest on this bond will be paid in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, at the principal corporate trust office of the Trustee, or its successor in trust, in Canton, Massachusetts. This bond is one of the bonds, of the above designated series, of an authorized issue of bonds of the Company known as First Mortgage Bonds, all issued or issuable in one or more series under and equally and proportionately secured (except insofar as any sinking fund, depreciation fund or other fund established in accordance with the provisions of the Indenture hereinafter mentioned may afford additional security for the bonds of any specific series) by an Indenture of First Mortgage dated as of December 1, 1952, as supplemented and modified by a First Supplemental Indenture dated as of January 1, 1955, and supplemented by a Second Supplemental Indenture dated as of September 1, 1957, a Third Supplemental Indenture dated as of December 1, 1957, a Fourth Supplemental Indenture dated as of February 1, 1958, a Exhibit A --------- -10- 12 Fifth Supplemental Indenture dated as of May 1, 1959, a Sixth Supplemental Indenture dated as of May 1, 1961, a Seventh Supplemental Indenture dated as of November 1, 1961 and an Eighth Supplemental Indenture dated as of November 1, 1966, each executed and delivered by the Company to Old Colony Trust Company, Boston, Massachusetts, as Trustee, to which State Street Bank and Trust Company, Boston, Massachusetts, is successor Trustee, as successor in interest to The First National Bank of Boston, successor by merger to Old Colony Trust Company (herein said State Street Bank and Trust Company, as said trustee, and its successors under said Indenture sometimes called the "Trustee"), a Ninth Supplemental Indenture dated as of June 1, 1971, a Tenth Supplemental Indenture dated as of June 1, 1981, an Eleventh Supplemental Indenture dated as of December 15, 1989, and a Twelfth Supplemental Indenture dated as of December 20, 1989, each executed and delivered by the Company to The First National Bank of Boston, Boston, Massachusetts, as Trustee, to which State Street Bank and Trust Company, Boston, Massachusetts, is successor Trustee, as successor in interest to The First National Bank of Boston, and a Thirteenth Supplemental Indenture dated as of September 19, 1996, executed and delivered by the Company to the Trustee, and all indentures supplemental thereto (herein sometimes called the "Indenture") reference to which is hereby made for a description of the property mortgaged and pledged as security for said bonds, the nature and extent of the security, and the rights, duties and immunities thereunder of the Trustee, the rights of the holders of said bonds and of the Trustee and of the Company in respect of such security, and the terms upon which said bonds may be issued thereunder; but neither the foregoing reference to the Indenture nor any provision of this bond or of the Indenture or of any indenture supplemental thereto shall affect or permit any impairment of the obligation of the Company, which is absolute and unconditional, to pay at the stated or accelerated times herein provided, the principal of and the premium, if any, and the interest on this bond as herein provided. The bonds of this series are entitled to the benefits of a Guaranty and Negative Pledge Agreement to which reference is made in the Bond Purchase Agreement dated September 20, 1996 between the Company and the original holder of the bonds of this series and the Endorsement endorsed hereon or attached hereto. The bonds of this series are subject to redemption prior to maturity as a whole or in part at the option of the Company at any time on or after September 15, 2016 and prior to maturity, upon payment of the principal amount of bonds to be redeemed plus (i) accrued interest thereon and (ii) an amount equal to the Make Whole Amount. Notwithstanding the provisions of Section 8.05 of the Indenture, no trust moneys (as such term is defined in the Indenture) may be applied by the Trustee at any time to the redemption prior to maturity of any bonds of this series. As used herein, the following terms shall have the following respective meanings: The term "Make Whole Amount" shall mean at any time with respect to any redemption of the bonds of this series, to the extent that the Treasury Rate plus 50 basis points at such time is lower than 7.99% per annum, the excess of (a) the present value of the Exhibit A --------- -11- 13 principal and interest payments on and in respect of the bonds of this series being redeemed that would otherwise become due and payable (without giving effect to such redemption), discounted at a rate which is equal to the Treasury Rate plus 50 basis points over (b) the principal amount of the bonds of this series being redeemed, at par. To the extent that the Treasury Rate plus 50 basis points at the time of such redemption is equal to or higher than 7.99% per annum, the Make Whole Amount is zero. The term "premium" shall include any Make Whole Amount. The term "Treasury Rate" at any time with respect to any bonds of this series being redeemed, shall mean and shall be determined by reference to the applicable display on Bloomberg Financial Markets Service as of 10:00 A.M., New York time, on the second business day prior to the date fixed for redemption (or, if such display is no longer available, any publicly available source of similar market data), and shall be the yield on actively traded United States Treasury securities adjusted to a maturity equal to the then remaining Weighted Average Life to Maturity of the bonds of this series being redeemed (the "Remaining Life"). If the Remaining Life is not equal to the maturity of a United States Treasury security for which a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of the two closest United States Treasury securities for which such yields are given, except that if the Remaining Life is less than one year, the average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year shall be used. The Treasury Rate shall be computed to the fifth decimal place (one-thousandth of a percentage point) and then rounded to the fourth decimal place (one-hundredth of a percentage point). The term "Weighted Average Life to Maturity" shall mean, at any date, the number of years obtained by dividing the then Remaining Dollar-years of the bonds of this series being redeemed by the then outstanding principal amount of such bonds. For purposes of this definition, the "Remaining Dollar-years" of any bonds of this series being redeemed shall mean, at any date, the total of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment. If this bond or any portion thereof ($1,000 or any multiple thereof) is duly designated for redemption, if payment of the principal hereof or of such portion, together with accrued interest, and the Make Whole Amount is irrevocably provided for and if notice of such redemption is duly given or provided for, all as specified in the Indenture, this bond or such portion shall cease to be entitled to the lien of the Indenture from and after the date such payment and notice are irrevocably so provided for and shall cease to bear interest from and after the date fixed for redemption. In the event of the selection for redemption of a portion only of the principal of this bond, payment of the redemption price will be made at the option of the registered owner, Exhibit A --------- -12- 14 either (a) upon notation hereon by the holder of this bond of such payment of the portion of the principal of this bond so called for redemption, or (b) upon surrender of this bond in exchange for a bond or bonds for the unredeemed balance of the principal amount of this bond. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than sixty-six and two-thirds percent in principal amount of the bonds at the time outstanding (determined as provided in the Indenture) including, if more than one series of bonds shall be at the time outstanding, not less than sixty-six and two-thirds percent in principal amount of the bonds at the time outstanding of each series affected, to effect, by an indenture or indentures supplemental to the Indenture, modifications or alterations of the Indenture and of the rights and obligations of the Company and of the holders of the bonds and coupons; provided, however, that no such modification or alteration shall be made without the consent of the registered owner hereof which will (a) extend the maturity of this bond or reduce the rate or extend or otherwise change the time of payment of interest hereon or reduce the amount of the principal hereof or reduce any premium payable on the redemption hereof, or (b) permit the creation of any lien, not otherwise permitted, prior to or on a parity with the lien of the Indenture, or alter the equal and proportionate security afforded by the lien of the Indenture for the bonds issued thereunder, or (c) reduce the number or percentage of the principal amount of the bonds upon the consent of the holders of which modifications or alterations may be made as aforesaid or defaults may be waived. This bond is transferable by the registered owner hereof in person or by his duly authorized attorney, on books of the Company kept for the purpose, at the principal corporate trust office of the Trustee upon surrender of this bond for cancellation and upon payment, if the Company shall so require, of the charges provided for in the Indenture, and thereupon a new bond of the same series of like principal amount will be issued to the transferee in exchange therefor. The registered owner of this bond at his option may surrender the same for cancellation at said office and receive in exchange therefor the same aggregate principal amount of bonds of the same series but of other authorized denominations upon payment, if the Company shall so require, of the charges provided for in the Indenture and subject to the terms and conditions therein set forth. If a default as defined in the Indenture shall occur, the principal of this bond may become or be declared due and payable before maturity in the manner and with the effect provided in the Indenture. The holders, however, of certain specified percentages of the bonds at the time outstanding, including in certain cases specified percentages of bonds of particular series, may in the cases, to the extent and under the conditions provided in the Indenture, waive past defaults thereunder and the consequences of such defaults. No recourse shall be had for the payment of the principal of or the premium, if any, or the interest on this bond, or expenses related thereto or for any claim based hereon, or Exhibit A --------- -13- 15 otherwise in respect hereof or of the Indenture, against any incorporator, stockholder, director or officer, past, present or future, as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or such predecessor or successor corporation, under any constitution or statute or rule of law, or by the enforcement of any assessment or penalty, or otherwise, all such liability of incorporators, stockholders, directors and officers, as such, being waived and released by the holder and owner hereof by the acceptance of this bond and as provided in the Indenture. The Company and the Trustee, any paying agent and any bond registrar may deem and treat the person in whose name this bond is registered, or his registered assigns, as the absolute owner hereof, whether or not this bond shall be overdue, for the purpose of receiving payment and for all other purposes and neither the Company nor the trustee nor any paying agent nor any bond registrar shall be affected by any notice to the contrary. This bond shall not become or be valid or obligatory for any purpose until the authentication certificate hereon shall have been signed by the Trustee. IN WITNESS WHEREOF, FALL RIVER GAS COMPANY has caused these presents, which are intended to take effect as a sealed instrument, to be executed in its corporate name by its President or one of its Vice Presidents and its Treasurer or one of its Assistant Treasurer, under its corporate seal or a facsimile thereof, attested by its Clerk or one of its Assistant Clerks, all as of ____________ ___, _____. FALL RIVER GAS COMPANY By: --------------------------------- President (Corporate Seal) By: --------------------------------- Treasurer Attest: - - ---------------------------- Assistant Clerk Exhibit A --------- -14- 16 [FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE] This is one of the bonds of the series designated therein, described in the within mentioned Indenture. STATE STREET BANK AND TRUST COMPANY, As Trustee By ------------------------------ Authorized Signatory [FORM OF ASSIGNMENT] For value received, the undersigned hereby sells, assigns, and transfers unto (whose Taxpayer Identifying Number is ) the within bond, and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said bond on the books of the Company, with full power of substitution in the premises. Dated: In the presence of: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. [FORM OF ENDORSEMENT OF GUARANTOR] ENDORSEMENT OF GUARANTOR This First Mortgage Bond, 7.99% Series due 2026 is entitled to the benefits of the Guaranty and Negative Pledge Agreement dated September 20, 1996 by and among Fall River Gas Company, Fall River Gas Appliance Company, Inc. and Allstate Life Insurance Company. Dated: FALL RIVER GAS APPLIANCE -------------------- COMPANY, INC. By ------------------------------ President Exhibit A --------- -15- 17 Section 1.02. REDEMPTION PROVISIONS FOR BONDS OF THE 2026 SERIES. The Bonds of the 2026 Series shall be subject to redemption prior to maturity as a whole or in part at the option of the Company at any time on or after September 15, 2016 and prior to maturity as set forth in the form of the Bonds of the 2026 Series set forth in Section 1.01 hereof. Notwithstanding the provisions of Section 8.05 of the Original Indenture, the Company and the Trustee agree that no trust moneys (as such term is defined in the Original Indenture) may be applied by the Trustee at any time to the redemption prior to maturity of any Bonds of the 2026 Series. Whenever less than all of the outstanding Bonds of the 2026 Series are to be redeemed, the principal amount of such Bonds to be redeemed shall be prorated in units of $1,000 each among the holders of the Bonds of the 2026 Series in the proportion that their respective holdings bear to the aggregate principal amount of Bonds of the 2026 Series outstanding on the date of selection. Section 1.03. RESTRICTION ON PAYMENT OF DIVIDENDS ON COMMON STOCK. The Company shall not (a) declare or pay any dividend (other than dividends payable in Common Stock of the Company) or make any other distribution on any shares of Common Stock, (b) make any expenditures for the purchase, redemption or other retirement for a consideration of any shares of capital stock of the Company (other than in exchange for, or from the proceeds of, other and new shares of capital stock of the Company and other than any class of preferred stock required to be purchased, redeemed or otherwise retired for any sinking fund or purchase fund for such class of stock), or (c) make any loans or advances to or investments in any securities of any subsidiary of the Company (other than from the proceeds of new shares of capital stock of the Company), if the aggregate amount of all such dividends, distributions, expenditures, loans, advances and investments made since September 30, 1995, would exceed the aggregate amount of the net income of the Company accumulated after September 30, 1995, plus the sum of $4,000,000. Net income of the Company for the purpose of this Section shall mean (a) the total operating revenues of the Company, less the total operating expenses, taxes (including, without limitation, income, excess profits and other taxes based on or measured by income or undistributed earnings or income), interest charges and other appropriate items, including provision for maintenance and provision for retirements, depreciation or obsolescence, which shall be the amount actually charged by the Company on its books of account, but in respect of depreciable gas utility property not subject to prior liens shall not be less than the minimum provision for depreciation, as defined in Section 1.33 of the Original Indenture, as amended to date, (b) other net non-operating income and (c) other income (less any applicable expenses) of the Company and after provision for all dividends accrued on any outstanding stock of the Company having preference over the Common Stock as to dividends, assets or otherwise, all of the foregoing determined in accordance with sound accounting practice, PROVIDED, HOWEVER, that in determining the net income of the Company for the purposes of this Section no deduction or adjustment shall be made for or in respect of any charges or credits which under sound accounting practice are not appropriate charges or credits in determining net income and, without limiting the generality of the foregoing, no deduction or adjustment shall be made Exhibit A --------- -16- 18 for or in respect of (a) profits or losses from sales, abandonment or other disposition of property or other capital assets or from the reacquisition of any securities of the Company, or taxes on or in respect of any such profits; (b) any change in or adjustment of the book value of any assets owned by the Company; (c) any earned surplus adjustment (including tax adjustments) applicable to any period prior to October 1, 1995; or (d) amortization, retirement or elimination of gas utility plant adjustment accounts or intangibles. A subsidiary of the Company for the purposes of this Section shall mean any corporation a majority of the stock of which having ordinary voting power not contingent upon a condition of default is owned by the Company or any other subsidiary of the Company. Section 1.04. INDEBTEDNESS. Unless the holders of two-thirds in principal amount outstanding of the Bonds of the 2026 Series shall otherwise generally or specifically as to a particular instance consent thereto in writing: (a) the Company shall not permit its aggregate indebtedness for borrowed money at any time during any period specified below to exceed the percentage specified below for such period of the Company's total capitalization: Period Maximum Permitted Percentage ------ ---------------------------- From and after September 15, 1996 through September 14, 2000 70% From and after September 15, 2000 through September 14, 2002 68% From and after September 15, 2002 65%; and (b) the Company shall not at any time incur or become liable for any bonded indebtedness, including, but not limited to, the issuance of any Bonds, unless the net income available for interest of the Company for a period of 12 consecutive calendar months within the 15 calendar months immediately preceding the month in which the Company proposes to incur or become liable for such indebtedness is at least two times the fixed annual interest charges on all indebtedness for borrowed money of the Company, including such bonded indebtedness. As used herein, the following terms shall have the following respective meanings: The term "total capitalization" shall mean at any time the sum of (a) the principal amount of all outstanding indebtedness of the Company for borrowed money, (b) the aggregate amount of par or stated capital represented by all issued and outstanding capital stock of all classes of the Company having preference as to dividends or upon liquidation over Exhibit A --------- -17- 19 its common stock, if any, and (c) the common stock equity of the Company. The term "common stock equity" shall be the sum of the amount of par or stated capital represented by all issued and outstanding common stock (excluding treasury stock), all premiums on capital stock of the Company of all classes, and the surplus (including retained earnings and paid-in or capital surplus) of the Company, less (a) any unamortized debt discount and expense, unamortized extraordinary property losses and capital stock discount and expense set forth on the asset side of the balance sheet, and (b) the excess, if any, of the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Company on any outstanding shares of the Company having a preference as to dividends or upon liquidation over the common stock, over the aggregate amount of par or stated capital represented by any such outstanding shares; PROVIDED, HOWEVER, that no deduction shall be made in the determination of common stock equity for any of the amounts or items referred to in clauses (a) and (b) of this paragraph which are, at the time of the determination of the common stock equity, being amortized or provided for by reserve. The term "indebtedness for borrowed money" shall include all indebtedness of the Company for borrowed money (whether long or short term) of every kind and nature and any guaranty of the indebtedness of another but shall not include: (1) Current liabilities of the Company (other than for money borrowed) incurred in the ordinary course of its business; (2) Indebtedness of the Company for taxes, assessments or governmental charges or levies if the same shall not at the time be due and payable or can be paid thereafter without penalty or shall concurrently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books reserves deemed by it adequate with respect thereto; (3) Short term indebtedness for borrowed money incurred from time to time for purposes of purchasing gas supplies, but only to the extent that the Company's Cost of Gas Adjustment Clause then reflects an under-collection of allowable costs equal to or greater than the outstanding balance of such indebtedness; and provided further, however, that the exclusion within this paragraph (3) shall not apply if such indebtedness, if otherwise included within the definition of "indebtedness for borrowed money," would cause the Company's aggregate indebtedness for borrowed money to exceed 70% of the Company's total capitalization; or (4) Judgments or awards in respect of which the Company shall in good faith be prosecuting an appeal or proceedings for review and in respect of which it shall have secured a subsisting stay of execution or sale pending such appeal of proceedings. The term "net income available for interest" of the Company shall mean (a) the total operating revenues of the Company, less the total operating expenses, taxes (excluding income, excess profits and other taxes based on or measured by income or undistributed Exhibit A --------- -18- 20 earnings or income), and other appropriate items, including provision for maintenance and provision for retirements, depreciation or obsolescence, which shall be the amount actually charged by the Company on its books of account but in respect of depreciable gas utility property not subject to prior liens shall not be less than the minimum provision for depreciation, as defined in Section 1.33 of the Original Indenture, as amended to date, (b) other net non-operating income and (c) other income (less any applicable expenses), of the Company, all of the foregoing determined in accordance with sound accounting practice; provided, however, that in determining the net income of the Company for the purposes of this Section no deduction or adjustment shall be made for or in respect of any charges or credits which under sound accounting practice are not appropriate charges or credits in determining net income and, without limiting the generality of the foregoing, no deduction or adjustment shall be made for or in respect of (a) profits or losses from sales, abandonment or other disposition of property or other capital assets or from the reacquisition of any securities of the Company, or taxes on or in respect of any such profits; (b) any change in or adjustment of the book value of any assets owned by the Company; (c) any earned surplus adjustment (including tax adjustments) applicable to any period prior to October 1, 1995; or (d) amortization, retirement or elimination of gas utility plant adjustment accounts or intangibles. Section 1.05. DEPRECIATION. So long as any of the Bonds of the 2026 Series are outstanding (whether or not any Bonds of the 2020 Series are outstanding), the term "minimum provision for depreciation" shall have the meaning defined in Section 1.33 of the Original Indenture as modified by Clause (6) of Article Two of the First Supplemental Indenture as to the period during which any Bonds of the 1980 Series were outstanding. Section 1.06. DURATION OF EFFECTIVENESS OF ARTICLE ONE. This Article shall be of force and effect only so long as any Bonds of the 2026 Series are outstanding. ARTICLE TWO Principal Amount of Bonds of the 2026 Series Presently to be Issued Section 2.01. The total aggregate principal amount of Bonds of the 2026 Series presently to be issued and outstanding under the provisions of and secured by the Indenture, will be Seven Million Dollars ($7,000,000). Additional Bonds, other than Bonds of the 2020 Series and Bonds of the 2026 Series or of any other series established after the execution and delivery of this Thirteenth Supplemental Indenture may from time to time be authenticated, delivered and issued pursuant to the terms of the Indenture, except that no further Bonds shall be issued pursuant to the provisions of the second paragraph of Section 5.01 of the Original Indenture inserted therein by the provisions of Article Two, Clause (9) of the First Supplemental Indenture. Section 2.02. Upon the execution and delivery of this Thirteenth Supplemental Exhibit A --------- -19- 21 Indenture, or from time to time thereafter, Seven Million Dollars ($7,000,000) principal amount of Bonds of the 2026 Series may be executed by the Company and delivered to the Trustee and shall thereupon be authenticated and delivered by the Trustee to and upon the written order of the Company, upon compliance by the Company with the provisions of Article Five of the Original Indenture. ARTICLE THREE Amendment of the Indenture Section 3.01. The Twelfth Supplemental Indenture is hereby modified by deleting in its entirety the first paragraph of Section 1.04 of Article One of the Twelfth Supplemental Indenture and inserting in lieu thereof the following replacement first paragraph: "Section 1.04. INDEBTEDNESS. Unless the holders of two-thirds in principal amount outstanding of the Bonds of the 2020 Series shall otherwise generally or specifically as to a particular instance consent thereto in writing: (a) the Company shall not permit its aggregate indebtedness for borrowed money at any time during any period specified below to exceed the percentage specified below for such period of the Company's total capitalization: Period Maximum Permitted Percentage ------ ---------------------------- From and after September 15, 1996 through September 14, 2000 70% From and after September 15, 2000 through September 14, 2002 68% From and after September 15, 2002 65%; and (b) the Company shall not at any time incur or become liable for any bonded indebtedness, including, but not limited to, the issuance of any Bonds, unless the net income available for interest of the Company for a period of 12 consecutive calendar months within the 15 calendar months immediately preceding the month in which the Company proposes to incur or become liable for such indebtedness is at least two times the fixed annual interest charges on all indebtedness for borrowed money of the Company, including such bonded indebtedness." ARTICLE FOUR Miscellaneous Exhibit A --------- -20- 22 Section 4.01. This Thirteenth Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture as supplemented and modified by the First Supplemental Indenture and supplemented by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Supplemental Indentures, and shall form a part thereof, and the Original Indenture and the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Supplemental Indentures are hereby confirmed. Except to the extent inconsistent with the express terms hereof, all of the provisions, terms, covenants and conditions of the Original Indenture as supplemented and modified by the First Supplemental Indenture and supplemented by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Supplemental Indentures shall be applicable to the Bonds of the 2026 Series to the same extent as if specifically set forth herein. All terms used in this Thirteenth Supplemental Indenture shall be taken to have the same meaning as in the Original Indenture as so supplemented and modified except in cases where the context clearly indicates otherwise. Section 4.02. All recitals in this Thirteenth Supplemental Indenture are made by the Company only and not by the Trustee; and all of the provisions contained in the Original Indenture as so supplemented and modified in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect hereof as fully and with like effect as if set forth herein in full. Section 4.03. The Company covenants that it is lawfully seized and possessed at the date of execution of this Thirteenth Supplemental Indenture of all the trust estate described in this Thirteenth Supplemental Indenture, except as specifically otherwise stated in this Thirteenth Supplemental Indenture, and that all the trust estate so described is free and clear of any lien other than the lien of the Indenture and permitted encumbrances; that the Company will warrant and forever defend all the trust estate so described to the Trustee against the claims of all persons whomsoever except as in the Indenture specifically otherwise stated, that it will maintain and preserve the lien of the Indenture so long as any of the Bonds issued under the Indenture are outstanding; and that it has good right and lawful authority to subject all the trust estate so described to the lien of the Indenture as provided in and by the terms of the Indenture. Section 4.04. Notwithstanding any provisions of the Indenture or the Bonds of the 2026 Series, so long as the original registered holder or any subsequent registered holder of Bonds of the 2026 Series which is a bank, insurance company or other institutional investor shall hold any of the Bonds of the 2026 Series, all payments of interest on the Bonds of the 2026 Series, and all payments on account of principal or premium, if any, shall be made directly to each such registered holder or its nominee at such address as may from time to time be furnished by such holder in writing without surrender or presentation of such Bonds of the 2026 Series to the Trustee (except that such holder shall surrender a Bond within a reasonable period of time following receipt of payment, by redemption or otherwise, of such Bond of the 2026 Series in whole) and with respect to each such original holder such payments shall be made in accordance with the provisions of any written agreement between such original holder Exhibit A --------- -21- 23 and the Company which shall have been communicated and consented to by the Trustee. The Trustee hereby consents to the method of payment described in "Schedule I" to the Bond Purchase Agreement dated September 20, 1996 between the Company and such original holder. The Trustee also consents to the provisions of sections 9.1, 9.2 and 9.3 of said Bond Purchase Agreement and agrees that if a mutilated, destroyed or lost Bond of the 2026 Series was held by the original holder or any other institutional holder of recognized standing and sound financial condition reasonably satisfactory to the Company or any nominee for the original holder or such other institutional holder (a) an agreement of indemnity reasonably satisfactory to the Company from such original holder or such other institutional holder, as the case may be, shall constitute indemnity satisfactory to it for the purposes of the Indenture and (b) the Trustee will look only to the Company for reimbursement of its expenses incurred in connection with such replacement. Section 4.05. This Thirteenth Supplemental Indenture may be executed in several counterparts and on separate counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts, or as many of them as the Company and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument. Exhibit A --------- -22- 24 IN WITNESS WHEREOF, Fall River Gas Company has caused this Thirteenth Supplemental Indenture to be signed in its corporate name and behalf by its President or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers and its corporate seal to be hereunto affixed and attested by its Clerk or one of its Assistant Clerks, and State Street Bank and Trust Company in token of its acceptance of the trust hereby created has caused this Thirteenth Supplemental Indenture to be signed in its name and behalf by one of its ___________________ , and its corporate seal to be hereunto affixed and attested by one of its_______________ , all on the ___ day of September, 1996, but as of the day and year first above written. FALL RIVER GAS COMPANY By: ---------------------------------- , President and By: ------------------------------ , Treasurer Attest: (Corporate Seal) - - ------------------------------ Assistant Clerk STATE STREET BANK AND TRUST COMPANY, as successor in interest to The First National Bank of Boston By: ---------------------------------- [Title] Attest: (Corporate Seal) - - ------------------------------ [Title] Exhibit A --------- -23- 25 COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF SUFFOLK ) SS.: At Boston on this 19th day of September, 1996, before me appeared _______________________ and ___________________ , to me personally known, who, being by me duly sworn, did say that they are the President and Treasurer, respectively, of the Fall River Gas Company, and that the seal affixed to the foregoing instrument is the corporate seal of said Company, and that the said instrument was signed and sealed by them on behalf of said Company by authority of its Board of Directors, and the said _______________and __________________ acknowledged said instrument to be the free act and deed of said Company. ------------------------- Notary Public My commission expires: (Notarial Seal) COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF SUFFOLK ) SS.: At Boston on this 19th day of September, 1996, before me appeared _______________, to me personally known, who, being by me duly sworn, did say that he is a ______________________of State Street Bank and Trust Company, and that the seal affixed to the foregoing instrument is the corporate seal of said State Street Bank and Trust Company, and that the said instrument was signed and sealed on behalf of said State Street Bank and Trust Company by authority of its Board of Directors and the said ___________________acknowledged said instrument to be the free act and deed of said State Street Bank and Trust Company. ----------------------- Notary Public My commission expires: (Notarial Seal) Exhibit A --------- -24- 26 SCHEDULE A ---------- Exhibit A --------- -25- EX-5 5 OPINION OF RICH, MAY, BILODEAU & FLAHERTY, PC 1 EXHIBIT 5 [LETTERHEAD OF RICH, MAY, BILODEAU & FLAHERTY, P.C.] October 11, 1996 Fall River Gas Company 155 North Main Street Fall River, MA 02722 Dear Sirs/Mesdames: You are seeking to register, pursuant to the Securities Act of 1933, an aggregate of 250,000 shares of Common Stock, $0.83 1/3 par value, of Fall River Gas Company (the "Company"), under the Company's Share Owner Dividend Reinvestment and Stock Purchase Plan. You have requested that we furnish to you an opinion which is to be filed as Exhibit 5 to the Registration Statement on Form S-3 (the "Registration Statement") relating to such shares. We have examined the Company's charter documents and the Company's By-Laws, each as amended, copies of resolutions adopted by the Board of Directors of the Company, the Registration Statement, and such other documents as we have deemed pertinent. We have participated in the filing with the Massachusetts Department of Public Utilities ("MDPU") of the Company's application and petition relating to authorization and approval of the issue and sale of such shares and we have examined the order of the MDPU relating thereto. We have made such examination of law as we have felt necessary in order to render this opinion. It is our further understanding that the purpose of the above described offering is to provide the Company with funds to finance additions to the Company's property, plant and equipment or to repay temporary indebtedness incurred to finance such additions. Based on the foregoing, we are of the opinion and advise you that, under applicable rules and regulations of the Securities and Exchange Commission, the Registration Statement will become effective upon the filing thereof with the Securities and Exchange Commission; we are further of the opinion that, with respect to the 250,000 shares of the stock being registered, such shares will be legally issued, fully paid and non-assessable when issued and delivered for the consideration described in the Registration Statement. 2 The Berkshire Gas Company October 11, 1996 Page 2 This opinion does not pass on the application of the securities or "Blue Sky" laws of the various states. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We further consent to the use of our name and to all references to us included in or made a part of the Registration Statement. Very truly yours, /s/ RICH, MAY, BILODEAU & FLAHERTY, P.C. RICH, MAY, BILODEAU & FLAHERTY, P.C. EX-24.A 6 CONSENT OF ARTHUR ANDERSON LLP 1 Exhibit 24(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-3 of our reports, dated November 20, 1995, included in the Company's annual report on Form 10-K for the year ended September 30, 1995 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Boston, Massachusetts October 11, 1996 EX-99.A 7 ORDER OF MASS. DEPT. OF PUBLIC UTILITIES 1 EXHIBIT 99(A) DEPARTMENT OF PUBLIC UTILITIES August 15, 1996 D.P.U. 96-63 Application and Petition of Fall River Gas Company to the Department of Public Utilities pursuant to Section 14 of Chapter 164 of the General Laws for approval and authorization to issue and sell on a negotiated basis additional First Mortgage Bonds (or other long-tenn debt securities) in an aggregate principal amount up to $7,000,000, to be sold at par; to issue and sell not in excess of 250,000 shares of Common Stock, $0.83-113 par value, pursuant to the Company's Share Owner Dividend Reinvestment and Stock Purchase Plan; for an exemption from the advertising and competitive bid requirements of Section 15 of Chapter 164 of the General Laws; and for such other actions as may be deemed necessary or appropriate in connection with the foregoing. - - ---------------------------------------------------------------------------- APPEARANCES: Eric J. Krathwohl, Esq. Emmett E. Lyne. Esq. Rich, May, Bilodeau & Flaherty, P.C. 294 Washington Street Boston, Massachusetts 02108 FOR: FALL RIVER GAS COMPANY Petitioner ---------- L. Scott Harshbarger, Attorney General By: William McAvoy Assistant Attorney General 200 Portland Street Boston, MA 02114 Intervenor ---------- 2 D.P.U. 96-63 Page 3 I. INTRODUCTION ------------ On May 23, 1996, Fall River Gas Company ("Fall River" or "Company", pursuant to G.L. c. 164, [Section]14 and 15, filed a petition with the Department of Pubic Utilities ("Department") for approval and authorization of: (1) the issuance and sale of First Mortgage Bonds ("FMB") or other long-term debt securities in an aggregate principal amount up to $7,000,000 to be sold at par;(1) (2) the issuance and sale of up to 250,000 shares of common stock, $0.83-1/3 par value, through a Share Owner Stock Purchase and Dividend Reinvestment Plan ("Plan"); and (3) an exemption from the advertisement and bidding requirements of G.L. c. 164, [Section]15. The Company's petition was docketed as D.P.U. 96-63. Pursuant to notice duly issued, a public hearing was held at the Department's offices in Boston on July 17, 1996. In support of its petition, the Company presented the testimony of Peter H. Thanas, senior vice president and treasurer of Fall River. The evidentiary record includes three exhibits and one record request. The Attorney General was the only intervenor in the case. On August 7, 1996 the Attorney General filed a letter-brief ("AG Brief"). The Company filed a response ("Response") on August 9, 1996. II. DESCRIPTION OF THE PROPOSED FINANCING ------------------------------------- A. Issuance of First Mortgage Bonds -------------------------------- Fall River seeks authorization from the Department to issue and sell, from time to time, at par value, up to $7,000,000 of FMBs or other long-term debt securities, with a maturity of 30 years, at a fixed interest rate of 7.99 percent (Exhs. FRG-1, at 2-3; FRG-3, at 1; Tr. at 9). The Company stated that the FMBs have a "make-whole" call premium (Tr. at 19). The Company's Board of Directors authorized the sale and issuance of the proposed financing on February 8, 1996 (Exh. FRG-l, at 2). - - -------- (1) The Company originally petitioned for authority to issue and sell up to $8,000,000 of FMBs. Subsequently, the Company determined that it would issue up to $7,000,000 of FMBs and as such, the Company petitions the Department for authority to issue and sell such amount to which the Company and the bond purchaser are committed (Letter to Department, dated July 30, 1996). 3 D.P.U. 96-63 Page 4 The Company stated that the use of the FMBs allows the Company to access low interest rates (id. at 5). Additionally, the Company stated that the thirty-year maturity of the FMBs fits well with the Company's cash requirements given its current level of outstanding debt and that the issuance of FMBs combined with the issuance of common stock through the Plan is designed to maintain a target debt to equity ratio of approximately 50-50 (ID.). B. Share Owner Dividend Reinvestment and Stock Purchase Plan --------------------------------------------------------- Fall River seeks authorization from the Department to issue and sell not in excess of 250,000 shares of common stock, $0.83-1/3 par value, pursuant to the Company's Plan (ID. at 2-3). Under the Plan, record shareholders have the option to automatically reinvest cash dividends on all or a portion of their shares of common stock or to purchase common stock at any time in any amount from a minimum of fifteen dollars in any calendar month to a maximum of five thousand dollars in any calendar month (ID. at-3; Tr. at 10).(2) The Company stated that the Plan will be administered by the Plan Committee appointed by the Company's Board of Directors (Exh. FGR-1, Prospectus at 4). The Company also stated that the Plan is similar to most dividend reinvestment plans of other utilities (Tr. at 9). The Company stated that the price for the stock under the Plan would be set at 97 percent of the current market price as long as such price exceeded the book value of the Company's common stock and the par value (Exh. FRG-1, at 3). The Company stated that because the Plan did not involve commission expenses, Fall River could offer the price quoted and as such, encourage investment in the Plan (Tr. at 15). The Company stated that the Plan provides significant benefits to the Company, its shareholders and customers as it offers ongoing and significant capital infusion at a very low cost (Exh FRG-l at 3). C. Use of the Proceeds ------------------- The Company stated that the proceeds from the sale of the FMBs or other long-term debt securities and shares of common stock pursuant to the Plan will be used to retire short-term debt - - -------- (2) The Company initially proposed a ceiling of three thousand dollars in any calendar month which it later changed to five thousand dollars (Tr. at 10). The Company noted that other similar plans have increased their ceiling to five thousand dollars (ID.). 4 D.P.U. 96-63 Page 5 which the Company incurred to finance additions to property, plant and equipment (Exhs. FRG-l, at 6; FRG-3, at 2; Tr. at 9) (3) The Company stated that its proposed use of proceeds is consistent with the Company's traditional method of financing capital additions, I.E., temporarily through short-term borrowings or internally generated funds and later permanently via the issuance of equity or debt securities (Exh. FRG-1, at 4).(4) D. Exemption from G.L. C. 164. [Section]15 --------------------------------------- In addition, the Company requests exemption from the advertising and competitive bidding requirements of G.L. c. 164, [Section]15. The Company stated that a negotiated, private sale rather than a public sale is more favorable as the size of the offering would not likely attract bids on the open market, and the costs of bidding, advertising, and issuance associated with a public sale are much greater (ID. at 5; Tr. at 13). The Company stated that it contacted seven investment banks and reviewed each bank's proposal (Tr. at 13-14). The Company stated that it retained the Bank of Boston, N.A. on the basis of cost and marketing capabilities (Exh. FRG-l at 5-6; Tr. at 13-14). III. POSITION OF THE PARTIES ----------------------- A. Attorney General ---------------- The Attorney General states that he has concerns with the make-whole terms of the Company's issuance of up to $7,000,000 of FMBs which arise from the Company's experience with a prior issuance of $6,500,000 FMBs, as approved by the Department in D.P.U. 89-199 (AG BRIEF at 1). The Attorney General states that although the make-whole provision included in the terms of the prior issuance allowed for redemption of the FMBs in theory, it imposed a prepayment penalty of $1,538,610 which made it economically prohibitive to refinance the FMBs - - -------- (3) The Company stated that it incurred large construction expenditures for new and replacement services, main replacements and system improvements to provide reliable service to existing and new customers (Exh. FRG-l, at 4). (4) The Company stated that banks are reluctant to issue lines of credit to Fall River if it does not issue long term debt over time to reduce its short-term borrowings, I.E., debt less than one year in term (Tr. at 17). 5 D.P.U. 96-63 Page 6 in the case of lower interest rates (ID.). The Attorney General maintains that if the Company had negotiated the prior issuance with more reasonable call terms, the Company could have more easily refinanced its prior bond issue and experienced interest rate savings of $94,250 per year (ID.). The Attorney General recommends that the Department disallow inclusion of the make-whole provision in the issuance of $7,000,000 FMBs and that the Department deny the issuance until said FMBs include less costly call terms (ID. at 2). B. Company ------- The Company states that the Attorney General's suggestions would increase costs to ratepayers (Response at 1). The Company further states that the Attorney General does not provide any evidence in support of his cost savings assertions (ID. at 2). Fall River maintains that the Attorney General's calculations omit prepayment premium costs which are significant (ID.). Further, the Company maintains that make-whole provisions, such as the one used by Fall River, are the norm used by utility investment bankers (ID. at 1). The Company also asserts that the terms of the make-whole provision were arrived at after extensive review of market alternatives with expert investment banking advice, that the interest rate of the proposed financing is very favorable, and that the Department should approve the financing as proposed (ID. at 2). IV. CAPITAL STRUCTURE OF THE COMPANY -------------------------------- As of March 31, 1996, the Company's utility plant in service was $53,931,956, with accumulated depreciation of $17,428,445, resulting in net utility plant of $36,503,511 (Exh. FRG-l, sch. 2, at 1, sch. 3). As of March 31, 1996, the Company's capitalization consisted of long term debt of $7,300,00, common stock of $1,834,445, and paid in capital of $1,356,043. Therefore, the excess of utility plant amounted to $26,013,023 as of March 31, 1996 (Exh. FRG-l, schs. 3, 4). V. STANDARD OF REVIEW ------------------ In order for the Department to approve the issuance of stock, bonds, coupon notes, or other types of long-term indebtedness(5) by an electric or gas company, the Department must - - -------- (5) Long-term refers to periods of more than one year after the date of issuance. G.L. c. 164, [Section]14. 6 D.P.U. 96-63 Page 7 determine that the proposed issuance meets two tests. First, the Department must assess whether the proposed issuance is reasonably necessary to accomplish some legitimate purpose in meeting a company's service obligations, pursuant to G.L. c. 164, [Section]14. FITCHBURG GAS & ELECTRIC LIGHT COMPANY V. DEPARTMENT OF PUBLIC UTILITIES, 395 Mass. 836, 842 (1985) ("Fitchburg II"), CITING FITCHBURG GAS & ELECTRIC LIGHT COMPANY V. DEPARTMENT OF PUBLIC UTILITIES, 394 Mass. 671, 678 (1985) ("Fitchburg I"). Second, the Department must determine whether the Company has met the net plant test.(6) COLONIAL GAS COMPANY, D.P.U. 84-96 (1984). The Court has found that, for the purposes of G.L. c. 164, [Section]14, "reasonably necessary" means "reasonably necessary for the accomplishment of some purpose having to do with the obligations of the company to the public and its ability to carry out those obligations with the greatest possible efficiency." FITCHBURG II at 836, CITING LOWELL GAS LIGHT COMPANY V. DEPARTMENT OF PUBLIC UTILITIES, 319 Mass. 46, 52 (1946). In cases where no issue exists about the reasonableness of management decisions regarding the requested financing, the Department limits its Section 14 review to the facial reasonableness of the purpose to which the proceeds of the proposed issuance will be put. CANAL ELECTRIC COMPANY. ET AL., D.P.U. 84-152, at 20 (1984); SEE, E.G., COLONIAL GAS COMPANY, D.P.U. 90-50, at 6 (1990). The FITCHBURG I AND II and LOWELL GAS cases also established that the burden of proving that an issuance is reasonably necessary rests with the company proposing the issuance, and that the Department's authority to review a proposed issuance "is not limited to a 'perfunctory review.'" FITCHBURG I at 678; FITCHBURG II at 842, CITING LOWELL GAS at 52. Regarding the net plant test, a company is required to present evidence that its net utility plant (original cost of capitalizable plant, less accumulated depreciation) equals or exceeds its total capitalization (the sum of its long-term debt and its preferred and common stock outstanding) and will continue to do so following the proposed issuance. COLONIAL GAS COMPANY, D.P.U. 84 96, at 5 (1984). Pursuant to G.L. c. 164, [Section]15, an electric or gas company offering long-term bonds or notes in excess of $1 million in face amount payable at periods of more than five years after the - - -------- (6) The net plant test is derived from G.L. c 164, [Section]16@. 7 D.P.U. 96-63 Page 8 date thereof must invite purchase proposals through newspaper advertisements. The Department may grant an exemption from this advertising requirement if the Department finds that an exemption is in the public interest. G.L. c. 164, [Section]15. The Department has found it in the public interest to grant an exemption from the advertising requirement where there has been a measure of competition in private placement. SEE, E.G., WESTERN MASSACHUSETTS ELECTRIC COMPANY, D.P.U. 88-32, at 5 (1988); EASTERN EDISON COMPANY, D.P.U. 88-127, at 11-12 (1988); BERKSHIRE GAS COMPANY, D.P.U. 89-12, at 11 (1989). The Department also has found that it is in the public interest to grant a company an exemption from the advertising requirement when a measure of flexibility is necessary in order for a company to enter the bond market in a timely manner. SEE, E.G, WESTERN MASSACHUSETTS ELECTRIC COMPANY, D.P.U. 88-32, at 5 (1988). However, G.L. c. 164, [Section]15 requires advertising as the general rule; and waiver cannot be automatic but must be justified whenever requested. Where issues concerning the prudence of the Company's capital financing have not been raised or adjudicated in a proceeding, the Department's decision in such a case does not represent a determination that any specific project is economically beneficial to a company or to its customers. In such circumstances, the Department's determination in its Order may not in any way be construed as ruling on the appropriate ratemaking treatment to be accorded any costs associated with the proposed financing. SEE, E.G., BOSTON GAS COMPANY, D P.U. 95-66, at 7 (1995). VI. ANALYSIS AND FINDINGS --------------------- Based on the foregoing, the Department finds that the proposed issuance and sale of up to $7,000,000 of FMBs or other long-term debt securities with a term of thirty years and bearing an interest rate of 7.99 percent per annum and the proposed issuance and sale of 250,000 shares of commons stock under the Plan is reasonably necessary to retire short term debt which the Company incurred to finance plant, property and equipment to provide reliable service to existing and new customers. As such, the Department finds that the proposed issuance and sale of up to $7,000,000 in FMBs and 250,000 shares of common stock pursuant to the Plan is reasonably necessary to accomplish some legitimate purpose in meeting a Company's service obligations in accordance with G.L. c. 164, [Section]14. 8 D.P.U. 96-63 Page 9 The Department finds that the Company's proposed issuance and sale of FMB's meets the net plant test, since the Company's total capital stock and long-term debt will not exceed the Company's net plant after the proposed issuance. Based on the Company's estimated net proceeds to be received from the proposed sale of up to 250,000 shares of common stock under the Plan, there will continue to be an excess of net utility plant to total securities at the completion of the Company's proposed financings, after accounting for the issuance and sale of the common stock through the Plan and the aggregate principal amount of $7,000,000 FMBs. As such, the Department finds that the proposed issuances meet the net plant test. The Department rejects the Attorney General's request that the Department deny the issuance of up to $7,000,000 in FMBs until said FMBs contain less costly terms. SEE FALL RIVER GAS COMPANY, D.P.U. 89-199, at 8-9 (1989). The Department finds that the Attorney General did not provide any evidence to support his cost savings assertions. Moreover, the evidence indicates that the Company, in consultation with investment bankers, reviewed interest rates, call dates, and call premiums to propose a financing that was reasonable. Regarding the Company's request for an exemption from the requirements of G.L. c. 164, [Section]15, we find that it is appropriate to allow the Company the flexibility offered by the private placement process in order to assist the Company in responding to market conditions and to take advantage of prevailing interest rates. The record in this case further demonstrates that the Company has surveyed banks and financial institutions so as to ensure a competitive rate through the private placement process. Therefore, the Department finds that it is in the public interest to exempt the Company from the advertisement and bidding requirements of G.L. c. 164, [Section]15. Issues concerning the prudence of the Company's capital financing have not been addressed in this proceeding, and the Department's decision in this case does not represent a determination that any project is economically beneficial to the company or its customers. The Department emphasizes that its determination in this Order shall not in any way be construed as a ruling relative to the appropriate ratemaking to be accorded any costs associated with the proposed financing. VII. ORDER ----- 9 D.P.U. 96-63 Page 10 Accordingly, after due notice, hearing, and consideration, the Department VOTES: That the issuance and sale by Fall River Gas Company of First Mortgage Bonds or other long-term debt securities in the aggregate principal amount of up to $7,000,000 is reasonably necessary for the purpose for which the Company has petitioned; and it FURTHER VOTES: That the issuance and sale, from time to time, by Fall River Gas Company of not in excess of 250,000 shares of common stock, $0.83-1/3 par value per share, pursuant to its Share Owner Dividend Reinvestment and Stock Purchase Plan, is reasonably necessary for the purpose for which the Company has petitioned; and it is ORDERED: That the Department hereby approves and authorizes the issue and sale of First Mortgage Bonds in the aggregate principal amount of up to $7,000,000, to bear interest at a rate of 7.99 percent, due to mature not later than 30 years from the date of issue; and it is FURTHER ORDERED: That the Department hereby approves and authorizes the issuance and sale from time to time of not in excess of 250,000 shares of common stock, S0.83-1/3 par value per share, at a price not less than par, pursuant to its Share Owner Dividend Reinvestment and Stock Purchase Plan; and it is FURTHER ORDERED: That the issuance and sale by Fall River Gas Company of First Mortgage Bonds in the aggregate principal amount of up to $7,000,000, without inviting proposals for the purchase thereof by publication in certain designated newspapers, is in the public interest, and such issue shall be exempt from the provisions of G.L. c. 164, [Section]15; and it is FURTHER ORDERED: That the net proceeds from such sale of all such securities shall be used for the purposes as set forth herein; and it is 10 D.P.U. 96-63 Page 11 FURTHER ORDERED: That the Secretary of the Department shall within three days of the issuance of this Order cause a certified copy of it to be filed with the Secretary of the Commonwealth. By Order of the Department, ------------------------------------ Joseph B. Howe, Chairman ------------------------------------- Mary Clark Webster, Commissioner ------------------------------------- Janet Gail Besser, Commissioner A true copy Attest: MARY L. COTTRELL Secretary 11 D.P.U. 96-63 Page 12 Appeal as to matters of law from any final decision, order or ruling of the Commission may be taken to the Supreme Judicial Court by an aggrieved party in interest by the filing of a written petition praying that the Order of the Commission be modified or set aside in whole or in part. Such petition for appeal shall be filed with the Secretary of the Commission within twenty days after the date of service of the decision, order or ruling of the Commission, or within such further time as the Commission may allow upon request filed prior to the expiration of twenty days after the date of service of said decision, order or ruling. Within ten days after such petition has been filed, the appealing party shall enter the appeal in the Supreme Judicial Court sitting in Suffolk County by filing a copy thereof with the Clerk of said Court. (Sec. 5, Chapter 25, G.L. Ter. Ed., as most recently amended by Chapter 485 of the Acts of 1971). -----END PRIVACY-ENHANCED MESSAGE-----