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As Filed With the Securities and Exchange Commission on October 21, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
E'TOWN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
New Jersey
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
22-2596330
(I.R.S. EMPLOYER IDENTIFICATION NO.)
600 SOUTH AVENUE
WESTFIELD, NEW JERSEY 07091-0788
908-654-1234
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Walter M. Braswell
Secretary
E'town Corporation
600 South Avenue
Westfield, New Jersey 07091-0788
(908) 654-1234
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
David P. Falck
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective, when warranted by
market conditions and other factors.
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT
TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. [_]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING PURSUANT
TO RULE 462(b) UNDER THE SECURITIES ACT, PLEASE CHECK THE FOLLOWING BOX AND LIST
THE SECURITIES ACT REGISTRATION STATEMENT
<PAGE> 2
NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING.
[_] ____
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(c) UNDER
THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT
FOR THE SAME OFFERING. [_] ____
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each Proposed Proposed
class of maximum maximum
securities to Amount to offering aggregate Amount of
be registered (1) be registered price per unit offering price registration fee
- ----------------- ------------- -------------- -------------- ----------------
<S> <C> <C> <C> <C>
Debt Securities $75,000,000 100% $75,000,000 $22,125
</TABLE>
(1) Exclusive of accrued interest, if any, and estimated solely for the purpose
of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Subject to Completion
Dated October 20, 1998
P R O S P E C T U S
$75,000,000
E'TOWN CORPORATION
DEBT SECURITIES
----------------------------
E'town Corporation is a New Jersey corporation which serves as a
holding company for Elizabethtown Water Company (and its wholly owned
subsidiary, The Mount Holly Water Company) and for other subsidiaries engaged in
water distribution, waste water treatment and real estate investments.
We intend to offer from time to time up to $75,000,000 of our unsecured
Debt Securities.
This prospectus will be delivered for each issue of Debt Securities
offered, together with a prospectus supplement that will contain specific terms
of the Debt Securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THESE DEBT SECURITIES OR DETERMINED THAT THIS PROSPECTUS
IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
We may offer the Debt Securities directly or through underwriters,
agents or dealers. The prospectus supplement will describe the terms of that
plan of distribution. "Plan of Distribution" below also provides more
information on this topic.
This prospectus may be used to offer and sell the Debt Securities only
if accompanied by the prospectus supplement for those securities.
You should read this prospectus and the prospectus supplement carefully
before you invest.
The date of this Prospectus is October __, 1998.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES, AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
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WHERE YOU CAN FIND MORE INFORMATION
E'town Corporation ("E'town" or the "Company") is required by the
Securities Exchange Act of 1934 (the "Exchange Act") to file annual, quarterly
and special reports and other information with the Securities and Exchange
Commission (the "SEC"). These reports and other information can be inspected and
copied at the SEC's public reference room at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's Regional Offices at Seven World Trade
Center, Suite 1300, New York, New York 10048, and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of this material can
also be obtained visiting the SEC's website at http://www.sec.gov and by written
request addressed to the SEC, Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act of 1933 (the "Securities Act") with respect to the Debt
Securities offered by this prospectus. This prospectus does not contain all of
the information included or incorporated by reference in the registration
statement. For further information you should refer to the registration
statement.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. The
information included in this document is not complete, and should be read
together with the information incorporated by reference. We incorporate by
reference the documents listed below and our future filings with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until we or any
underwriters sell all of the Debt Securities:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997 ( the "1997 10-K").
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, and June 30, 1998.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
E'town Corporation
600 South Avenue
Westfield, New Jersey 07090
Attention: Secretary
You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these Debt
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Securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents.
THE COMPANY
E'town was incorporated under the laws of the State of New Jersey in
1985 to serve as a holding company for Elizabethtown Water Company
("Elizabethtown") and its wholly owned subsidiary, The Mount Holly Water Company
("Mount Holly").
Elizabethtown and Mount Holly are regulated water utilities serving
customers in central New Jersey. Elizabethtown and Mount Holly are engaged in
the distribution of water for domestic, commercial, industrial and fire
protection purposes and for resale by other water companies and public bodies.
Elizabethtown and Mount Holly are public utilities and are regulated by the New
Jersey Board of Public Utilities. Elizabethtown presently constitutes most of
E'town's assets and contributes most of its earnings.
E'town also owns Edison Water Company ("Edison"), which operates the
water system of the Township of Edison, New Jersey under a long-term contract
and Liberty Water Company ("Liberty"), which operates the water system of the
City of Elizabeth, New Jersey under a long-term contract. Both Edison and
Liberty are unregulated. In addition, E'town owns E'town Properties, Inc.
("Properties") and Applied Water Management, Inc. ("AWM") which are unregulated
subsidiaries. Properties owns various parcels of real estate in New Jersey.
E'town and Properties are in the process of selling those parcels, and expect to
invest the sale proceeds into water utility and wastewater investments. AWM
develops, owns and operates private water and wastewater facilities for
corporate and municipal clients.
E'town's subsidiaries serve a total of 230,000 water customers in New
Jersey, 53 municipalities (for fire protection service), and 11 municipalities
and other water companies (for wholesale service).
E'town's executive offices are located at 600 South Avenue, Westfield,
New Jersey 07091-0788. Its telephone number is (908) 654-1234.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth E'town's ratio of earnings to fixed
charges on a historical basis for each of the five full years ending with the
the period ended December 31, 1997 and for the six months ended June 30, 1998.
<TABLE>
<CAPTION>
Six Months
Year Ended December 31 Ended June 30,
-------------------------------------------------------- --------------
1993 1994 1995 1996 1997 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges 2.65 2.43 2.47 2.18 2.67 2.63
</TABLE>
Earnings to Fixed Charges equals the sum of net income, dividends, Federal
income taxes and interest expense (which excludes capitalized interest) divided
by fixed charges. Fixed charges consist of interest paid on long-term and
short-term debt, which includes capitalized interest and amortization of debt
discount.
USE OF PROCEEDS
Unless otherwise set forth in the applicable prospectus supplement
accompanying this prospectus, proceeds from the sale of the Offered Debt
Securities (as defined below) will be used by E'town (i) together with other
funds, to make a loan or equity contribution to Liberty to enable it to make
payments under its contract with the City of Elizabeth, New Jersey aggregating
$50 million through June 2000 (or to repay short-term debt incurred for such
purpose), and (ii) for other general corporate purposes, including debt
refinancing, investments in existing or new subsidiaries, acquisitions, and
working capital. Pending such uses, proceeds initially may be temporarily
invested in short-term securities.
DESCRIPTION OF DEBT SECURITIES
Set forth below are certain general terms and provisions of the Debt
Securities, which may be issued from time to time in one or more series. The
particular terms of each series of Debt Securities which are to be offered under
a prospectus supplement (the "Offered Debt Securities") are described in a
prospectus supplement relating thereto. Accordingly, for a description of the
terms of any particular series, reference must be made to both the description
set forth below and the prospectus supplement relating thereto.
The statements under this heading do not purport to be complete and are
subject to the detailed provisions of an Indenture to be dated as of November
__, 1998 (the "Indenture") between the Company and Summit Bank, as trustee (the
"Indenture Trustee"), a copy of which has been filed as an exhibit to the
Registration Statement of which this prospectus is a part. References in
parentheses below refer to section numbers
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in the Indenture and capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to them in the Indenture.
GENERAL
The Debt Securities may be issued in one or more new series under the
Indenture. The Indenture does not contain any limitation on the principal amount
of Debt Securities which may be issued. The Debt Securities will be unsecured
and unsubordinated obligations of the Company.
Reference is made to the prospectus supplement relating to any
particular series of Offered Debt Securities for the following terms, including
among others: (1) the title of such Debt Securities; (2) any limit on the
aggregate principal amount of such Debt Securities or the series of which they
are a part; (3) the date or dates on which the principal of any of such Debt
Securities will be payable; (4) the rate or rates at which any of such Debt
Securities will bear interest, the date or dates from which any such interest
will accrue, the Interest Payment Dates on which any such interest will be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date; (5) the place or places where the principal of and
premium, if any, and interest on any of such Debt Securities will be payable;
(6) the period or periods within which, the price or prices at which and the
terms and conditions on which any of such Debt Securities may be redeemed, in
whole or in part, at the option of the Company; (7) the obligation, if any, of
the Company to redeem or purchase any of such Debt Securities pursuant to any
sinking fund or analogous provision or at the option of the Holder thereof, and
the period or periods within which, the price or prices at which and the terms
and conditions on which any of such Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to any such obligation; (8) the
denominations in which any of such Debt Securities will be issuable if other
than denominations of $1,000 and any integral multiple thereof; (9) if the
amount of principal of or any premium or interest on any of such Debt Securities
will be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined; (10) if any such Debt
Securities will be issued in book-entry form and, if so, any and all matters
incidental to such Debt Securities; (11) any addition to the Events of Default
applicable to any of such Debt Securities; (12) any addition to the covenants of
the Company for the benefit of the Holders of such Debt Securities in the
Indenture; and (13) any other terms of such Debt Securities not inconsistent
with the provisions of the Indenture. (Section 301).
INDENTURE RESTRICTIONS
Under the Indenture the Company will not be permitted to voluntarily
place any type of lien on any of the common stock of Elizabethtown unless, at
the same time or prior to such action, the Company also secures all of the Debt
Securities equally and ratably with, or ahead of, the debt secured by that lien.
(Section 608).
The Company will also be prohibited from making any investments in any
entity which is not primarily engaged in the generation, distribution or sale of
electric energy or
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natural gas or the distribution or sale of water, or the furnishing of
communications services, or water treatment and analysis services, or in the
treatment of wastewater, unless (1) immediately after giving effect to that
investment, the aggregate value of all such investments by the Company and its
Subsidiaries would not exceed $50,000,000 and (2) no Default or Event of Default
under the Indenture would result. This restriction will not apply in the event
the Company consolidates with or merges into another company, and is not the
surviving company after that transaction. (Section 609).
FORM, EXCHANGE AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement, the
Debt Securities of each series will be issuable only in fully registered form
without coupons and in denominations of $1,000 and any integral multiple
thereof. (Sections 201 and 302).
At the option of the Holder, subject to the terms of the Indenture and
the limitations applicable to global securities, Debt Securities of any series
will be exchangeable for other Debt Securities of the same series, of any
authorized denomination and of like tenor and aggregate principal amount.
(Section 305).
Subject to the terms of the Indenture and the limitations applicable to
global securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or accompanied by a duly
executed instrument of transfer) at the office of the Security Registrar or at
the office of any transfer agent designated by the Company for such purpose. The
Company may designate itself the Security Registrar. No service charge will be
made for any registration of transfer or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Such transfer or exchange
will be effected upon the Security Registrar or such transfer agent, as the case
may be, being satisfied with the documents of title and identity of the person
making the request. (Section 305). Any transfer agent (in addition to the
Security Registrar) initially designated by the Company for any Debt Securities
will be named in the applicable prospectus supplement. The Company may at any
time designate additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which any transfer
agent acts, except that the Company will be required to maintain a transfer
agent in each Place of Payment for the Debt Securities of each series. (Section
602).
The Company will not be required to (i) issue, register the transfer
of, or exchange any Debt Security or any Tranche thereof during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of any such Debt Security called for redemption and ending
at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part. (Section 305).
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement,
payment of interest on a Debt Security on any Interest Payment Date will be made
to the person in whose name such Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
(Section 307).
Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time. Unless otherwise
indicated in the applicable prospectus supplement, the corporate trust office of
the Indenture Trustee in Hackensack, New Jersey will be designated as the
Company's sole Paying Agent for payments with respect to Debt Securities of each
series. Any other Paying Agents initially designated by the Company for the Debt
Securities of a particular series will be named in the applicable prospectus
supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for the Debt Securities of a
particular series. (Section 602).
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 603).
REDEMPTION
Any terms for the optional or mandatory redemption of any series of
Debt Securities will be set forth in the applicable prospectus supplement.
Except as shall otherwise be provided in the applicable prospectus supplement
with respect to Debt Securities that are redeemable at the option of the Holder,
Debt Securities will be redeemable only upon notice by mail not less than 30 nor
more than 60 days' prior to the date fixed for redemption, and, if less than all
the Debt Securities of a series, or any Tranche thereof, are to be redeemed, the
particular Debt Securities to be redeemed will be selected by such method as
shall be provided for any particular series, or in the absence of any such
provision, by such method of random selection as the Security Registrar deems
fair and appropriate. (Section 403 and 404).
Any notice of redemption at the option of the Company may state that
such redemption will be conditional upon receipt by the Paying Agent or Agents,
on or prior to the date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any, on such Debt
Securities and that if such money has not been so received, such notice will be
of no force and effect and the Company will not be required to redeem such Debt
Securities. (Section 404).
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EVENTS OF DEFAULT
The Indenture defines the occurrence of any one or more of the
following events to be an "Event of Default":
(a) failure to pay any interest on any Debt Security within 60
days after the same becomes due and payable;
(b) failure to pay the principal of or premium, if any, on any
Debt Security when due and payable;
(c) failure to perform or breach of any other covenant or
warranty of the Company in the Indenture (other than a covenant or
warranty of the Company in the Indenture solely for the benefit of one
or more series of Debt Securities other than such series), for 60 days
after written notice to the Company by the Indenture Trustee, or to the
Company and the Indenture Trustee by the Holders of at least 33% in
principal amount of the Debt Securities Outstanding under the Indenture
as provided in the Indenture;
(d) certain events of bankruptcy, insolvency or
reorganization; or
(e) any other Event of Default specified with respect to the
Debt Securities. (Section 801).
No Event of Default with respect to a particular series of the Debt
Securities necessarily constitutes an Event of Default with respect to any other
series of Debt Securities that may be issued under the Indenture.
REMEDIES
If an Event of Default occurs and is continuing with respect to Debt
Securities of any series at the time Outstanding, then either the Indenture
Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or
if any of the Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Debt Securities as may be specified in
the applicable prospectus supplement) of all of the Debt Securities of such
series to be due and payable immediately; provided, however, that if an Event of
Default occurs and is continuing with respect to more than one series of Debt
Securities, the Indenture Trustee or the Holders of not less than 33% in
aggregate principal amount of the Outstanding Debt Securities of all such
series, considered as one class, may make such declaration of acceleration, and
not the Holders of the Debt Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made and before a judgment or decree for
payment of
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the money due has been obtained by the Indenture Trustee, the Event of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if:
(a) the Company has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(1) all overdue interest on the Debt Securities of such
series;
(2) the principal of and premium, if any, on the Debt
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Debt Securities;
(3) interest upon overdue interest at the rate or rates
prescribed therefore in the Debt Securities of such series, to
the extent that payment of such interest is lawful; and
(4) all amounts due to the Indenture Trustee under the
Indenture;
and
(b) any other Event or Events of Default with respect to the
Debt Securities of such series, other than the nonpayment of the
principal of the Debt Securities of such series which has become due
solely by such declaration of acceleration, have been cured or waived
as provided in the Indenture. (Section 802).
If an Event of Default occurs and is continuing with respect to a
series of Debt Securities, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Indenture Trustee, or exercising any trust or power conferred on the
Indenture Trustee, with respect to the Debt Securities of such series; provided,
however, that if an Event of Default occurs and is continuing with respect to
more than one series of Debt Securities issued under the Indenture, the Holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of all such series, considered as one class, will have the right to make such
direction, and not the Holders of the Debt Securities of any one of such series;
and provided, further, that (a) such direction will not be in conflict with any
rule of law or with the Indenture and will not involve the Indenture Trustee in
personal liability in circumstances where reasonable indemnity would not in the
Indenture Trustee's sole discretion be adequate and (b) the Indenture Trustee
may take any other action it deems proper which is not inconsistent with such
direction. (Section 812).
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The Holders of a majority in principal amount of the then Outstanding
Debt Securities of any series may waive any past default under the Indenture
except a default (a) in the payment of the principal of or premium, if any, or
interest, if any, on any Debt Security of such series or (b) with respect to a
covenant or provision of the Indenture which under the Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of such series affected. (Section 813).
The right of a Holder of a Debt Security to institute a proceeding with
respect to the Indenture is subject to certain conditions precedent, but each
Holder has an absolute right to receive payment of principal and premium, if
any, and interest, if any, on or after the applicable due date specified in such
Debt Security and to institute suit for the enforcement of any such payment.
(Sections 807 and 808). The Indenture provides that the Indenture Trustee,
within 90 days after the occurrence of any default thereunder with respect to
the Debt Securities of any series, is required to give the Holders of the Debt
Securities of such series notice of such default, unless cured or waived;
provided, however, that, except in the case of a default in the payment of
principal of or premium, if any, or interest, if any, on the Debt Securities of
such series, the Indenture Trustee may withhold such notice if the Indenture
Trustee determines that it is in the interest of such Holders to do so; and
provided, further, that in the case of an Event of Default of the character
specified above in clause (c) under "Events of Default," no such notice shall be
given to such Holders until at least 75 days after the occurrence thereof.
(Section 902).
The Company will be required to furnish annually to the Indenture
Trustee a statement by an appropriate officer as to such officer's knowledge of
the Company's compliance with all conditions and covenants under the Indenture,
such compliance to be determined without regard to any period of grace or
requirement of notice under the Indenture. (Section 606).
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Company will not consolidate with or merge into any other
corporation or convey, transfer, or lease its properties and assets
substantially as an entirety to any Person unless (a) the corporation formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the property and assets of
the Company substantially as an entirety, is a Person organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and such Person expressly assumes, by supplemental
indenture, the due and punctual payment of the principal of and premium, if any,
and interest, if any, on all the Outstanding Debt Securities and the performance
of all of the covenants of the Company under the Indenture, (b) immediately
after giving effect to such transactions, no Default or Event of Default will
have occurred and be continuing, and (c) the Company will have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel as provided
in the Indenture. (Section 1101).
Unless otherwise indicated in the applicable prospectus supplement,
there are no provisions that will afford the Holders of Debt Securities
protection in the event of a
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highly leveraged transaction involving the Company. There are also no provisions
that will require the repurchase of the Debt Securities upon a change in control
of the Company.
MODIFICATION OF INDENTURE
Without the consent of any Holders of Debt Securities, the Company and
the Indenture Trustee may enter into one or more supplemental indentures, in
form satisfactory to the Indenture Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company in the Indenture and the Debt Securities;
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Outstanding Debt Securities or to
surrender any right or power conferred upon the Company by the
Indenture;
(c) to add any additional Events of Default with respect to
all or any series of Outstanding Debt Securities;
(d) to change or eliminate any provision of the Indenture or
to add any provision to the Indenture; provided that if such change,
elimination or addition will adversely affect the interests of the
Holders of Debt Securities of any series in any material respect, such
change, elimination or addition will become effective with respect to
such series only when there is no Debt Security of such series
remaining Outstanding under the Indenture;
(e) to provide collateral security for the Debt Securities;
(f) to establish the form or terms of Debt Securities of any
series as permitted by the Indenture;
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the registration, exchange and replacement thereof
and for the giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and any matters incidental thereto;
(h) to evidence and provide for the acceptance of appointment
of a separate or successor Indenture Trustee under the Indenture with
respect to the Debt Securities of one or more series and to add to or
change any of the provisions of the Indenture as shall be necessary to
provide for or to facilitate the administration of the trusts under the
Indenture by more than one Indenture Trustee;
13
<PAGE> 14
(i) to provide for the procedures required to permit the
utilization of a noncertificated system of registration for any series
of Debt Securities;
(j) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of Debt
Securities shall be payable, (2) all or any series of Debt Securities
may be surrendered for registration of transfer, (3) all or any series
of Debt Securities may be surrendered for exchange, and (4) notices and
demands to or upon the Company in respect of all or any series of Debt
Securities may be served; or
(k) to cure any ambiguity, defect or inconsistency or to make
any other changes to the provisions of the Indenture with respect to
matters and questions arising under the Indenture, provided such action
shall not adversely affect the interests of the Holders of Debt
Securities of any series in any material respect. (Section 1201).
The consent of the Holders of a majority in aggregate principal amount
of the Debt Securities of all series then Outstanding under the Indenture,
considered as one class, is required for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture pursuant to an indenture or supplemental indenture; provided, however,
that if less than all of the series of Debt Securities Outstanding under the
Indenture are directly affected by a supplemental indenture, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of all series so directly affected, considered as
one class, will be required; and provided, further, that if the Debt Securities
of any series have been issued in more than one Tranche and if the proposed
supplemental indenture directly affects the rights of the Holders of Debt
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of all Tranches so directly affected, considered as
one class, will be required; and provided, further, that no such supplemental
indenture will, without the consent of the Holder of each Outstanding Security
under the Indenture of each such series directly affected thereby, (a) change
the Stated Maturity of, or any installment of principal of or interest on, any
Debt Security, or reduce the principal thereof or the rate of interest (or the
amount of any installment of interest thereon), if any, thereon or redemption
premium thereon, or change the method of calculating the rate of interest
thereon, or reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof, or change the coin or currency (or other property) in which any Debt
Security or any premium or the interest thereon is payable or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity of any Debt Security (or, in the case of redemption, on or after the
Redemption Date), (b) reduce the percentage in principal amount of the Debt
Securities Outstanding under such series, the consent of the Holders of which is
required for any supplemental indenture or waiver of compliance with any
provision of the Indenture or any default thereunder and its consequences or to
reduce the requirements for quorum and voting under the Indenture,
14
<PAGE> 15
or (c) modify certain of the provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers of past
defaults.
A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities or one or more
Tranches thereof, or which modifies the rights of the Holders of Debt Securities
of such series or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under the Indenture of the Holders of
Debt Securities of any other series or Tranche. (Section 1202).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver under the
Indenture or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) Debt Securities owned by the Company or any other obligor upon
the Debt Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Outstanding Debt
Securities under the Indenture, or all Outstanding Debt Securities of each such
series and each such Tranche, as the case may be, determined without regard to
this clause (i)) shall be disregarded and deemed not to be Outstanding; (ii) the
principal amount of a Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof as provided in the Indenture; and (iii) the
principal amount of a Debt Security denominated in one or more foreign
currencies or a composite currency that will be deemed to be Outstanding will be
the amount of Dollars which could have been purchased by the principal amount
(or, in the case of a Debt Security described in clause (ii) above, of the
amount described in such clause) of such currency or composite currency
evidenced by such Debt Security. (Section 101).
If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, election, waiver or other Act, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, election,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on the record date shall be deemed to
be Holders for the purposes of (i) determining whether Holders of the requisite
proportion of the Outstanding Debt Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act and for that purpose the Outstanding Debt Securities shall
be computed as of the record date or (ii) determining which Holders may revoke
any such Act. Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
15
<PAGE> 16
thereof in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Debt Security. (Section 104).
SATISFACTION AND DISCHARGE
The principal amount of Debt Securities will be deemed to have been
paid for purposes of the Indenture and the entire indebtedness of the Company in
respect thereof will be deemed to have been satisfied and discharged, if there
shall have been irrevocably deposited with the Indenture Trustee or any Paying
Agent, in trust: (a) money in an amount which will be sufficient, or (b)
Government Obligations (as defined herein), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which, together with the
money, if any, deposited with or held by the Indenture Trustee, will be
sufficient, or (c) a combination of (a) and (b) which will be sufficient, to pay
when due the principal of and premium, if any, and interest, if any, due and to
become due on the Debt Securities that are outstanding. For this purpose,
Government Obligations include direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America and entitled to the benefit of the full faith and credit
thereof and certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof. (Section 701).
RESIGNATION OF THE INDENTURE TRUSTEE
The Indenture Trustee may resign at any time by giving written notice
thereof to the Company or may be removed at any time by Act of the Holders of a
majority in principal amount of the then Outstanding Debt Securities delivered
to the Indenture Trustee and the Company. No resignation or removal of the
Indenture Trustee and no appointment of a successor trustee will become
effective until the acceptance of appointment by a successor trustee in
accordance with the requirements of the Indenture. So long as no Event of
Default or event which, after notice or lapse of time, or both, would become an
Event of Default has occurred and is continuing and except with respect to a
Indenture Trustee appointed by Act of the Holders, if the Company has delivered
to the Indenture Trustee a resolution of its Board of Directors appointing a
successor trustee and such successor has accepted such appointment in accordance
with the terms of the Indenture, the Indenture Trustee will be deemed to have
resigned and the successor will be deemed to have been appointed as trustee in
accordance with the Indenture. (Section 910).
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable prospectus supplement, the
Debt Securities will be issued under a book-entry system in the form of one or
more global securities (each, a "Global Security"). Each Global Security will be
deposited with, or on
16
<PAGE> 17
behalf of, a depositary, which, unless otherwise specified in the accompanying
prospectus supplement, will be The Depository Trust Company, New York, New York
(the "Depositary"). The Global Securities will be registered in the name of the
Depositary or its nominee.
The Depositary is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. The Depositary holds securities that its participants
("Participants") deposit with the Depositary. The Depositary also facilitates
the settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. The Depositary is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the Depositary system is also available to others such as securities brokers
and dealers, banks, and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). The rules applicable to the Depositary and its
Participants are on file with the SEC.
Purchases of the Offered Debt Securities under the Depositary system
must be made by or through Direct Participants, which will receive a credit for
the Debt Securities on the Depositary's records. The ownership interest of each
actual purchaser of each Debt Security ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from the Depositary of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner
entered into the transaction. Transfers of ownership interests in the Debt
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Debt Securities, except
in the event that use of the book-entry system for the Debt Securities is
discontinued.
To facilitate subsequent transfers, all Debt Securities deposited by
Participants with the Depositary are registered in the name of the Depositary's
partnership nominee, Cede & Co. The deposit of Debt Securities with the
Depositary and their registration in the name of Cede & Co. effect no change in
beneficial ownership. The Depositary has no knowledge of the actual Beneficial
Owners of the Debt Securities; the Depositary's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of
17
<PAGE> 18
their customers.
Conveyance of notices and other communications by the Depositary to
Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither the Depositary nor Cede & Co. will consent or vote with respect
to the Debt Securities. Under its usual procedures, the Depositary mails an
Omnibus Proxy to the Company as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Debt Securities are credited on the record
date (identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any and interest payments on the Debt Securities
will be made to the Depositary. The Depositary's practice is to credit Direct
Participants' accounts on the payable date in accordance with their respective
holdings shown on the Depositary's records unless the Depositary has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of the Depositary, agent, or the
Company, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal and interest to the Depositary is the
responsibility of the Depositary, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
The Depositary may discontinue providing its services as securities
depository with respect to the Debt Securities at any time by giving reasonable
notice to the Company. Under such circumstances, in the event that a successor
securities depository is not obtained, Debt Security certificates are required
to be printed and delivered. The Company may decide to discontinue use of the
system of book-entry transfers through the Depositary (or a successor securities
depository). In that event, Debt Security certificates will be printed and
delivered.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities: (i) through underwriters or
dealers, (ii) directly to one or more purchasers, (iii) through agents or (iv)
through a combination of any such methods of sale. The applicable prospectus
supplement with respect to the
18
<PAGE> 19
Offered Debt Securities shall set forth the terms of the offering of the Offered
Debt Securities, including the name or names of any underwriters, dealers or
agents, the purchase price of such Offered Debt Securities and the proceeds to
the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid by any underwriters to
dealers. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers by any underwriters may be changed from
time to time.
If underwriters are used in the sale of the Offered Debt Securities,
the Offered Debt Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The underwriters with respect to
a particular underwritten offering of Offered Debt Securities will be named in
the applicable prospectus supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will be
set forth on the cover page of such prospectus supplement. In connection with
the sale of Offered Debt Securities, the underwriters may receive compensation
from the Company or from purchasers in the form of discounts, concessions or
commissions. The underwriters will be, and any dealers participating in the
distribution of the Offered Debt Securities may be, deemed to be underwriters
within the meaning of the Securities Act of 1933, as amended. The Company has
agreed to indemnify the underwriters against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended. The
underwriting agreement pursuant to which any Offered Debt Securities are to be
sold will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters will be obligated to
purchase all of the Offered Debt Securities if any are purchased; provided that
the agreement between the Company and the underwriter providing for the sale of
the Offered Debt Securities may provide that under certain circumstances
involving a default of underwriters that less than all of the Offered Debt
Securities may be purchased.
Any underwriters utilized may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under the Exchange
Act. Stabilizing transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the Offered Debt Securities in the
open market after the distribution has been completed in order to cover
syndicate short positions. Such stabilizing transactions and syndicate covering
transactions may cause the price of the Offered Debt Securities to be higher
than it would otherwise be in the absence of such transactions.
Offered Debt Securities may be sold directly by the Company or through
agents designated by the Company from time to time. The applicable prospectus
supplement shall set forth the name of any agent involved in the offer or sale
of the Offered Debt Securities in respect of which such prospectus supplement is
delivered as well as any commissions payable by the Company to such agent.
Unless otherwise indicated in the
19
<PAGE> 20
prospectus supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
If so indicated in the applicable prospectus supplement, the Company
will authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Offered Debt Securities from the Company at
the public offering price set forth in such prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to those conditions set forth
in the applicable prospectus supplement, and such prospectus supplement will set
forth the commission payable for solicitation of such contracts.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
LEGALITY
Certain legal matters concerning the offering will be passed upon for
the Company by Walter M. Braswell, Esq., Secretary of and counsel to the
Company, and Winthrop, Stimson, Putnam & Roberts, New York, New York, special
New York counsel to the Company. Certain legal matters will be passed upon for
any underwriters, agents or dealers by McCarter & English, LLP, Newark, New
Jersey.
20
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
Initial
Sale
----
<S> <C>
Registration Statement filing fee $22,125
*Rating Agencies' fees 55,000
*Trustees' fees 5,000
*Fees of Company's counsel 35,000
*Fees of Agents' counsel 30,000
(including blue-sky expenses)
*Accountants' fees 20,000
*Printing and engraving costs 5,300
*Miscellaneous expenses 5,000
-------
Total Expenses 177,425
</TABLE>
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 3, Section 6 of the Company's By-Laws provides that the Company
shall indemnify each director or officer of the Company and any person who, at
the request of the Company, has served as a director, officer or trustee of
another corporation in which the Company has a financial interest against
reasonable costs, expenses and counsel fees paid or incurred (including any
judgments, fines or reasonable settlements exclusive of any amount paid to the
Company in settlement) in connection with the defense of any action, suit or
proceeding in which such person is named as a party by reason of having been
such director, officer or trustee or by reason of any action taken or not taken
in such capacity unless such director, officer or trustee is finally adjudged to
have been derelict in the performance of his duties as director, officer or
trustee. If any such action, suit or proceeding is settled or otherwise
terminated as against such director, officer or trustee without a final
determination on the merits and the Board of Directors of the Company shall
determine that such director, officer or trustee has not in any substantial way
been derelict in the performance of his duties as charged in such action, suit
or proceeding, the Company shall indemnify such director, officer or trustee as
aforesaid.
Such rights of indemnification are not exclusive of any rights to which
a director or officer of the Company may have pursuant to statute or otherwise.
Section 14A:3-5 of the New Jersey Business Corporation Act (the "Act")
gives a corporation the power, without a specific authorization in its
certificate of incorporation
II-1
<PAGE> 22
or by-laws, to indemnify a corporate agent against expenses and liabilities
incurred in connection with certain proceedings involving the corporate agent by
reason of his being or having been such a corporate agent, provided that with
regard to a proceeding other than one by or in the right of the corporation, the
corporate agent must have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal proceeding, such corporate agent had no reasonable
cause to believe his conduct was unlawful. In any such proceeding, termination
of a proceeding by judgment, order, settlement, conviction or upon plea of nolo
contendere or its equivalent does not of itself create a presumption that any
such corporate agent failed to meet the above applicable standards of conduct.
The indemnification provided by the Act does not exclude any rights to which a
corporate agent may be entitled under a certificate of incorporation, by-law,
agreement, vote of shareholders or otherwise. No indemnification, other than
that required when a corporate agent is successful on the merits or otherwise in
any of the above proceedings shall be allowed if such indemnification would be
inconsistent with a provision of the certificate of incorporation, a by-law or a
resolution of the board of directors or of the shareholders, an agreement or
other proper corporate action in effect at the time of the accrual of the
alleged cause of action which prohibits, limits or otherwise conditions the
exercise of indemnification powers by the corporation or the rights of
indemnification to which a corporate agent may be entitled.
The Company also has insurance policies which, among other things,
provide officers and directors liability coverage, individually and in the
aggregate up to a limit of $20 million for each loss within a 12-month period.
ITEM 16. LIST OF EXHIBITS.
1 Form of Distribution Agreement
4(a) Form of Indenture between E'town Corporation and Summit Bank
4(b) Form of Debt Security
5 Opinion of Walter M. Braswell
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Deloitte & Touche LLP, Independent Auditors
23(b) Consent of Walter M. Braswell, Esq. (incorporated into Exhibit
5)
24 Power of attorney for each officer and director signing the
Registration Statement.
25 Statement of eligibility of trustee (Statement of Eligibility
and Qualification on Form T-1 of Summit Bank under the
Indenture).
27 Financial Data Schedule
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
2
<PAGE> 23
(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 any prospectus required by section 10(a)(3) of the
Securities Act; and
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the SEC by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities 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) 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the
3
<PAGE> 24
foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and this Registration Statement has
been signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Westfield and State of New Jersey, on the 20th day of October, 1998.
E'TOWN CORPORATION
By: /s/Gail P. Brady
----------------
Title: Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
*/s/Andrew M. Chapman President and Director October 20, 1998
- --------------------- (Principal Executive Officer)
/s/Gail P. Brady Treasurer October 20, 1998
- ---------------- (Principal Financial Officer)
*/s/Thomas J. Cawley Director October 20, 1998
- --------------------
*/s/Anthony S. Cicatiello Director October 20, 1998
- -------------------------
*/s/Edward A. Clerico Director October 20, 1998
- ---------------------
*/s/Dennis Doll Controller (Principal Accounting October 20, 1998
- --------------- Officer)
*/s/Anne Evans Estabrook Director, Chairman of the Board October 20, 1998
- ------------------------
*/s/James W. Hughes Director October 20, 1998
- -------------------
*/s/John Kean Director October 20, 1998
- -------------
*/s/Robert W. Kean, III Director October 20, 1998
- -----------------------
</TABLE>
5
<PAGE> 26
<TABLE>
<S> <C> <C>
*/s/Barry T. Parker Director October 20, 1998
- -------------------
*/s/Hugh M. Pfaltz Director October 20, 1998
- ------------------
*/s/Chester A. Ring Director October 20, 1998
- -------------------
*/s/Joan Verplanck Director October 20, 1998
- ------------------
</TABLE>
*By: Gail P. Brady as Attorney-in-Fact
6
<PAGE> 1
EXHIBIT 1
E'TOWN CORPORATION
$75,000,000
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
________, 1998
_____________, New Jersey
A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
Legg Mason Wood Walker, Incorporated
100 Light Street, 34th Floor
Baltimore, MD 21202
Dear Sirs:
E'town Corporation, a New Jersey corporation (the "Company"), confirms
its agreement with each of you with respect to the issue and sale by the Company
of up to $75,000,000 aggregate principal amount of its Medium-Term Notes (the
"Notes").
The Company proposes to issue the Notes under its Indenture (the
"Indenture") dated as of ___________, 1998 to Summit Bank and its successors, if
any ("Summit"), as trustee (the "Indenture Trustee").
The Notes will be issued in minimum denominations of $______ and
integral multiples thereof (unless otherwise specified by the Company), will be
issued only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement or
supplements to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Indenture and, in the case
of Notes sold pursuant to Section 2(a), the Administrative Procedures for the
Notes, attached hereto as Exhibits A and B, respectively (the "Procedures"). The
Procedures may only be amended by written agreement of the
<PAGE> 2
Company and you after notice to, and with the approval of, the Indenture
Trustee. For the purposes of this Agreement, the term "Agent" shall refer to
either of you acting solely in the capacity as agent for the Company pursuant to
Section 2(a) and not as principal, the term "Purchaser" shall refer to either of
you acting solely as principal pursuant to Section 2(b) and not as agent, and
the term "you" shall refer to you together at any time either of you is acting
in both such capacities or in either such capacity.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the
"Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on such Form (File No._________), including
a basic prospectus, which has become effective, for
the registration under the Act of up to $75,000,000
aggregate initial offering price of Notes. Such
registration statement, as amended at the date of
this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies
in all other material respects with said Rule. The
Company has included in such registration statement,
or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424
under the Act, a supplement or supplements to the
form of prospectus included in such registration
statement relating to the Notes and the plan of
distribution thereof (any of such supplements, a
"Prospectus Supplement"). In connection with the sale
of Notes, the Company proposes to file with the
Commission pursuant to the applicable paragraph of
Rule 424 under the Act further supplements to the
Prospectus Supplement providing for the specification
of or a change in the interest rates, if any,
maturity dates, issuance prices, redemption terms and
prices, if any, and, if appropriate, other terms of
the Notes sold pursuant hereto or the offering
thereof (any such supplement being hereinafter called
a "Pricing Supplement").
(b) At each of the following times: (i) as of the
Execution Time, (ii) on the Effective Date, (iii)
when any supplement to the Prospectus is filed with
the Commission, (iv) as of the date of any Terms
Agreement (as defined by Section 2(b)) and (v) at the
date of delivery by the Company of any Notes sold
hereunder (a "Closing Date"), (1) the Registration
Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and
the Indenture, each as amended or supplemented as of
any such time, complied or will comply as to form in
all material respects with the applicable
requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the respective rules thereunder;
(2) the Registration Statement, as amended as of any
such time, did not or will not contain an untrue
statement of a material fact or omit to state a
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<PAGE> 3
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; and (3) the Prospectus, as supplemented
as of any such time, will not include an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that the Company makes no representations or
warranties as to (A) that part of the Registration
Statement that shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the
Trust Indenture Act of the Indenture Trustee, (B) any
information contained in any Prospectus Supplement
relating to The Depository Trust Company ("DTC") or
DTC's book-entry system or (C) the information
contained in or omitted from the Registration
Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with
information furnished in writing to the Company by
you specifically for use in connection with the
preparation of the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term
"Effective Date" shall mean the later of (i) each
date that the Registration Statement and any
post-effective amendment or amendments thereto became
or become effective or (ii) the time and date of the
filing of the Company's most recent Annual Report on
Form 10-K. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the
form of basic prospectus relating to the Notes
contained in the Registration Statement at the
Effective Date (unless such basic prospectus has been
amended by the Company subsequent to the Effective
Date, in which case "Basic Prospectus" shall mean the
form of basic prospectus as so amended). "Prospectus"
shall mean the Basic Prospectus as supplemented by
the Prospectus Supplement and as it may be further
amended or supplemented at the particular time
referred to. "Registration Statement" shall mean the
registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and
financial statements, as it may be amended at the
particular time referred to. "Rule 415" and "Rule
424" refer to such rules under the Act. Any reference
herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date
of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amended", "amendment"
or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer
to and include the filing of any document under the
Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic
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<PAGE> 4
Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(d) Neither the Company nor any of its Subsidiaries (as
hereinafter defined) has sustained, since the date of
the latest audited financial statements included or
incorporated by reference in the Registration
Statement and the Prospectus, any loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, which has had
or is reasonably likely to have a material adverse
effect on the financial position, stockholders'
equity or results of operations of the Company and
its Subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Registration
Statement and the Prospectus; and, since the
respective dates as of which information is given in
the Registration Statement and the Prospectus, there
has not been any change in the capital stock (other
than pursuant to any stock purchase, dividend
reinvestment, savings, bonus, incentive, or similar
plan, or conversions of convertible securities into
common stock) or long-term debt (other than normal
amortization of debt premium and discount, bank or
finance company borrowings and repayments in the
ordinary course, or additional issuances or
repurchases of commercial paper) of the Company or
its Subsidiaries (except as may relate to (i) a trust
fund relating to certain public financing for The
Mount Holly Water Company relating to its Mansfield
Project, and (ii) debenture payments that may be
required pursuant to the indenture relating to the
6-3/4% Convertible Subordinated Debentures of E'town
Corporation on the death of a holder) or any material
adverse change, or any development involving a
prospective material adverse change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the
Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus.
(e) Each of Elizabethtown Water Company, The Mount Holly
Water Company, E'town Properties, Inc., Applied Water
Management, Inc., Liberty Water Company and Edison
Water Company (collectively the "Subsidiaries") and
the Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in
the Prospectus and is duly qualified to do business
in each jurisdiction in which it owns or leases real
property or in which the conduct of its business
requires such qualification except where the failure
to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the
business, properties, financial position or results
of operations of the Company and its Subsidiaries
taken as a whole; and all of the outstanding shares
of capital stock of each of the Subsidiaries have
been duly authorized and validly
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<PAGE> 5
issued, are fully paid and nonassessable and are
owned beneficially by the Company subject to no
security interest, other encumbrance or adverse
claim.
(f) The creation, issuance and sale of the Notes have
been duly and validly authorized by the Company and,
when issued and authenticated in accordance with the
provisions of the Indenture and delivered and paid
for by the purchasers thereof, the Notes will
constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the
Indenture equally and ratably with the securities
outstanding thereunder; this Agreement and the
Indenture have been duly authorized, executed and
delivered by the Company and constitute valid and
legally binding instruments, enforceable in
accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement
of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law)
and to an implied covenant of good faith,
reasonableness and fair dealing; and the Notes and
the Indenture conform in all material respects to the
descriptions thereof in the Registration Statement
and the Prospectus.
(g) The issue and sale of the Notes and the compliance by
the Company with all of the provisions of the Notes,
the Indenture, this Agreement and any Terms
Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict
with or result in a breach of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is
a party or by which the Company is bound or to which
any of the property or assets of the Company is
subject (except that, for purposes of this
representation and warranty, compliance with any
financial covenant requiring an arithmetic
computation (not determinable at the Execution Time)
in respect of any Notes shall be measured at the time
of the establishment of the terms of such Notes), nor
will such action result in any violation of the
provisions of the Company's Certificate of
Incorporation, as amended, or the Bylaws of the
Company or any statute or any order, rule or
regulation of any court or governmental agency or
body having jurisdiction over the Company or any of
its property or assets; and no consent, approval,
authorization, order, registration or qualification
of or with any such court or governmental agency or
body is required for the issue and sale of the Notes
or the consummation by the Company of the other
transactions contemplated by this Agreement or any
Terms Agreement or the Indenture except such as have
been obtained prior to the Execution Time under the
Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
public offering of the Notes.
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<PAGE> 6
(h) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any property
of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company
or any of its Subsidiaries, would individually or in
the aggregate have a material adverse effect on the
financial position, stockholders' equity or results
of operations of the Company and its Subsidiaries
taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others.
(i) There are no contracts or documents of the Company or
any of its Subsidiaries that are required to be
described in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement by the Act or by the rules and
regulations thereunder that have not been so
described or filed.
(j) The Company is not in violation of any of its
organizational documents or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement,
lease or other agreement to which the Company is a
party or by which the Company is bound or to which
any of the property or assets of the Company is
subject.
(k) The Company is not, and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Appointment of Agents; Solicitation by the Agent of Offers to
Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein,
the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase
of all or part of the Notes from the Company. On the
basis of the representations and warranties, and
subject to the terms and conditions set forth herein,
each Agent agrees, as agent of the Company, to use
its reasonable best efforts to solicit offers to
purchase the Notes from the Company upon the terms
and conditions set forth in the Prospectus (and any
supplement thereto) and in the Procedures. The
Company reserves the right, in its sole discretion,
to reject any offer to purchase Notes, in whole or in
part. In addition, the Company reserves the right, in
its sole discretion, to instruct the Agents to
suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase
the Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend
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<PAGE> 7
solicitations of offers to purchase Notes from the
Company until such time as the Company has advised
them that such solicitation may be resumed. The
Company agrees to pay each Agent a commission on the
Closing Date with respect to each sale of Notes by
the Company as a result of a solicitation made by
such Agent pursuant to this subsection, in an amount
equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes
sold by the Company. Such commission shall be payable
as specified in the Procedures. Subject to the
provisions of this Section 2 and to the Procedures,
offers for the purchase of Notes may be solicited by
the Agents as agents for the Company at such times
and in such amounts as the Agents deem advisable. The
Company may from time to time offer Notes for sale
otherwise than through an Agent; provided, however,
that so long as this Agreement shall be in effect the
Company shall not solicit or accept offers to
purchase Notes through any agent other than the
Agents unless (I) such agents have entered into a
Distribution Agreement with the Company providing for
the sale of Notes on terms and conditions
substantially similar to those contained herein, and
(ii) such solicitation or acceptance is on terms with
respect to commissions substantially similar to those
set forth in Exhibit A hereto and the Company shall
give the Agents reasonable notice of the appointment
of such agent for the purpose of soliciting the
Notes.
(b) Subject to the terms and conditions stated herein,
whenever the Company and you determine that the
Company shall sell Notes directly to you as
Purchaser, each such sale of Notes shall be made in
accordance with the terms of this Agreement and,
unless otherwise agreed by the Company and the
Purchaser, any supplemental agreement relating
thereto between the Company and the Purchaser. Each
such supplemental agreement (which shall be
substantially in the form of Exhibit C hereto) is
herein referred to as a "Terms Agreement". The
Purchaser's commitment to purchase Notes pursuant to
any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of
the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms
Agreement shall describe the Notes to be purchased by
the Purchaser pursuant thereto, specify the principal
amount of such Notes, the price to be paid to the
Company for such Notes, the rate at which interest
will be paid on the Notes, the Closing Date for such
Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any modification
of the requirements for the delivery of the opinions
of counsel, the certificates from the Company or its
officers, and the letter from the Company's
independent auditors, pursuant to Section 6(b). Such
Terms Agreement shall also specify the period of time
referred to in Section 4(m). Delivery of the
certificates for Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made as agreed to
between the Company and the Purchaser as set forth in
the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement,
against payment of funds to the Company in the net
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<PAGE> 8
amount due to the Company for such Notes by the
method and in the form set forth in the respective
Terms Agreement.
(c) The Agents shall not have any obligation to purchase
Notes from the Company as principal. However, absent
an agreement between an Agent and the Company that
such Agent shall be acting solely as an agent for the
Company, such Agent shall be deemed to be acting as
principal in connection with any offering of Notes by
the Company through such Agent. Accordingly, the
Agents, individually or in a syndicate, may agree
from time to time to purchase Notes from the Company
as principal for resale to investors and other
purchasers determined by such Agents. Any purchase of
Notes from the Company by an Agent as principal shall
be made in accordance with this Agreement, including
the Administrative Procedures attached hereto.
3. Offering and Sale of Notes. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the
Notes, the Company will not file any amendment of the
Registration Statement or supplement to the
Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a Pricing
Supplement or (iii) a supplement relating to an
offering of Securities other than the Notes) unless
the Company has furnished you a copy for your review
prior to filing and given you a reasonable
opportunity to comment on any such proposed amendment
or supplement. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus
to be filed with the Commission pursuant to the
applicable paragraph of Rule 424 within the time
period prescribed. The Company will promptly advise
you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission
pursuant to Rule 424, (ii) when, prior to the
termination of the offering of the Notes, any
amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request
by the Commission for any amendment of the
Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the
suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
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<PAGE> 9
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as
then supplemented would include an untrue statement
of a material fact or omit to state a material fact
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading, or if it shall be necessary to
amend the Registration Statement or to supplement the
Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company
promptly will (i) notify you to suspend solicitation
of offers to purchase Notes (and, if so notified by
the Company, you shall forthwith suspend such
solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the
Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or
omission or effect such compliance and (iii) supply
any supplemented Prospectus to you in such quantities
as you may reasonably request. If such amendment or
supplement, and any documents, certificates and
opinions furnished to you pursuant to paragraph (g)
of this Section 4 in connection with the preparation
of filing of such amendment or supplement are
satisfactory in all respects to you, you will, upon
the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment
is required, resume your obligation to solicit offers
to purchase Notes hereunder.
(c) During the term of this Agreement, the Company will
timely file all documents required to be filed with
the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act. In addition, on the
date (or as soon as practicable thereafter) on which
the Company makes any announcement to the general
public concerning earnings or concerning any other
event which is required to be described, or which the
Company proposes to describe, in a document filed
pursuant to the Exchange Act, the Company will
furnish to you the information contained in such
announcement. The Company will notify you of any
downgrading in the rating of the Notes or any other
debt securities of the Company or its Subsidiaries,
or any public announcement of placement of the Notes
or any other debt securities of the Company on what
is commonly termed a "watch list" for possible
downgrading, by any "nationally recognized
statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), promptly
after the Company learns of any such downgrading or
public announcement.
(d) As soon as practicable, the Company will make
generally available to its security holders and to
you an earnings statement or statements of the
Company and its Subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158
under the Act.
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<PAGE> 10
(e) The Company will furnish to you and your counsel,
without charge (except as otherwise provided herein),
a reasonable number of copies of the Registration
Statement (including exhibits thereto) and, so long
as delivery of a prospectus may be required by the
Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions
as you may designate, will maintain such
qualifications in effect so long as required for the
distribution of the Notes, and upon your request will
arrange for the determination of the legality of the
Notes for purchase by institutional investors.
(g) During the term of this Agreement, the Company shall
furnish to you (i) copies of all annual, quarterly
and other reports furnished to stockholders, (ii)
copies of all annual, quarterly and current reports
(without exhibits but including documents
incorporated by reference therein) of the Company
filed with the Commission under the Exchange Act and
(iii) such other information concerning the Company
as you may reasonably request from time to time.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident
to the performance of its obligations under this
Agreement, including, but not limited to, the fees
and disbursements of its accountants and counsel, the
cost of printing or other production and delivery of
the Registration Statement, the Prospectus, all
amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents
relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the
fees and disbursements, including fees of counsel,
incurred pursuant to Section 4(f), the fees and
disbursements of the Indenture Trustee and the fees
of any ratings agency that rates the Notes, (ii)
reimburse you on a quarterly basis for all reasonable
out-of-pocket expenses incurred by you in connection
with this Agreement (including, but not limited to,
advertising and promotional expenses), and (iii) pay
the reasonable fees and expenses of your counsel
incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be a new making to
you of the representations and warranties of the
Company in Section 1 (except that such
representations and warranties shall be deemed to
relate solely to the Registration Statement as then
amended and to the Prospectus as then amended and
supplemented to relate to such Notes). Each such
acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an
additional representation, warranty and agreement by
the Company that, as of the settlement date for the
sale of such Notes, after giving effect to the
issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any
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<PAGE> 11
other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate
amount of Securities (including any Notes) which have
been issued and sold by the Company will not exceed
the amount of Securities registered pursuant to the
Registration Statement of the Company. The Company
will inform you promptly upon your request of the
aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(j) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration
Statement or the Prospectus is amended or
supplemented (other than by a Pricing Supplement) the
Company will deliver or cause to be delivered
promptly to you a certificate of the Company, signed
by any of the Chairman of the Board, the President,
any Vice President having responsibilities for
financial matters or the Controller or Treasurer of
the Company, dated the date of the effectiveness of
such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you,
of the same tenor as the certificate referred to in
Section 5(d) but modified to relate to the last day
of the fiscal quarter for which financial statements
of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such
supplement.
(k) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration
Statement or the Prospectus is amended or
supplemented (other than by a Pricing Supplement),
the Company shall furnish or cause to be furnished
promptly to you a written opinions of Walter M.
Braswell, Secretary of, and counsel to, the Company,
and Winthrop, Stimson, Putnam & Roberts ("WSPR"),
special New York counsel for the Company,
satisfactory to you, dated the date of the
effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to
you, of the same tenor as the opinion referred to in
Section 5(b), but modified to relate to the
Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement or,
in lieu of such opinion, such counsel may furnish you
with a letter to the effect that you may rely on such
counsel's last opinion to the same extent as though
it were dated the date of such letter authorizing
reliance (except that statements in such last opinion
will be deemed to relate to the Registration
Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration
Statement or the Prospectus is amended or
supplemented (other than by a Pricing Supplement) to
set forth amended or supplemental financial
information (derived from the accounting records of
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<PAGE> 12
the Company subject to the internal controls of the
Company's accounting system or derived directly from
such records by computation), the Company shall cause
its independent auditors promptly to furnish you a
letter, dated the date of the effectiveness of such
amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of
the same tenor as the letter referred to in Section
5(e) with such changes as may be necessary to reflect
the amended and supplemental financial information
included or incorporated by reference in the
Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter.
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, issue or
announce the proposed issuance of any of its debt
securities, including the Notes, with maturities or
other terms substantially similar to the Notes being
purchased pursuant to such Terms Agreement.
(n) The Company shall not be required to comply with the
provisions of subsections (j), (k) and (l) of this
Section 4 during any period (which may occur from
time to time during the term of this Agreement) for
which the Company has instructed the Agents to
suspend the solicitation of offers to purchase Notes;
provided that, during any such period, any Purchaser
does not then hold any Notes purchased pursuant to a
Terms Agreement. Whenever the Company has instructed
the Agents to suspend the solicitation of offers to
purchase Notes for any such period, however, prior to
instructing the Agents to resume the solicitation of
offers to purchase Notes or prior to entering into
any Terms Agreement, the Company shall be required to
comply with the provisions of subsections (j), (k)
and (l) of this Section 4, but only to the extent of
delivering or causing to be delivered the most recent
certificate, opinion or letter, as the case may be,
which would have otherwise been required under each
such subsection unless the Agents otherwise
reasonably request that such documents in respect of
prior periods be delivered.
(o) As soon as practicable after the Execution Time, the
Company will make all recordings, registrations and
filings necessary to perfect and preserve the rights
created under the Supplemental Indenture.
5. Conditions to the Obligations of the Agents. The obligations of the
Agents to solicit offers to purchase the Notes shall be subject to (i) the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date and when any
supplement to the Prospectus is filed with the Commission, (ii) the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions:
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<PAGE> 13
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424, the
Prospectus, and any such supplement, shall have been
filed in the manner and within the time period
required by Rule 424; and no stop order suspending
the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have furnished to the Agents the
opinions of Walter M. Braswell, Secretary of, and
counsel to, the Company, and of WSPR, special New
York counsel for the Company, dated the Execution
Time, to the effect that:
(i) (To be delivered by Walter M. Braswell) The
Company and each of its Subsidiaries has
been duly incorporated and is validly
existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, with power and authority
(corporate and governmental) to own its
properties and conduct its business as
described in the Prospectus, as amended or
supplemented, and is duly qualified to do
business in each jurisdiction in which it
owns or leases real property or in which the
conduct of its business requires such
qualification except where the failure to be
so qualified, considering all such cases in
the aggregate, does not involve a material
risk to the business, properties, financial
position or results of operations of the
Company, and all of the outstanding shares
of capital stock of each of the Subsidiaries
have been duly authorized and validly
issued, are fully paid and non-assessable
and are owned of record and beneficially by
the Company subject to no security interest,
other encumbrance, or adverse claim.
(ii) (To be delivered by Walter M. Braswell)
Other than as set forth or contemplated in
the Prospectus, there are no legal or
governmental proceedings pending to which
the Company is a party or of which any
property of the Company is the subject
which, if determined adversely to the
Company, would individually or in the
aggregate have a material adverse effect on
the consolidated financial position,
stockholders' equity or results of
operations of the Company and its
Subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others.
(iii) (To be delivered by Walter M. Braswell) This
Agreement has been duly authorized, executed
and delivered by the Company
(iv) (To be delivered by WSPR) This Agreement is
legally binding instrument, enforceable in
accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent conveyance,
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<PAGE> 14
reorganization, moratorium and other similar
laws relating to or affecting the
enforcement of creditors' rights generally,
to general equitable principles (regardless
of whether such enforceability is considered
in a proceeding in equity or at law) and to
an implied covenant of good faith,
reasonableness and fair dealing.
(v) (To be delivered by Walter M. Braswell) The
Indenture has been duly authorized, executed
and delivered by the Company
(vi) (To be delivered by WSPR) The Indenture is a
legally binding instrument, enforceable in
accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws relating
to or affecting the enforcement of
creditors' rights generally, to general
equitable principles (regardless of whether
such enforceability is considered in a
proceeding in equity or at law) and to an
implied covenant of good faith ,
reasonableness and fair dealing; and the
Indenture has been duly qualified under the
Trust Indenture Act.
(vii) (To be delivered by Walter M. Braswell) The
creation, issuance and sale of the Notes
have been duly and validly authorized by the
Company and, when issued in accordance with
the authorizing resolutions of the Board of
Directors of the Company and in accordance
with any applicable orders of regulatory
bodies and, when maturity dates, interest
rates and other similar terms have been
inserted therein and such Notes have been
executed and authenticated as specified in
the Indenture and delivered against payment
of the consideration therefor determined in
accordance with this Agreement, such notes
will be valid obligations of the Company.
(viii) (To be delivered by WSPR) When issued in
accordance with the authorizing resolutions
of the Board of Directors of the Company and
in accordance with any applicable orders of
regulatory bodies and, when maturity dates,
interest rates and other similar terms have
been inserted therein and such Notes have
been executed and authenticated as specified
in the Indenture and delivered against
payment of the consideration therefor
determined in accordance with this Agreement
such Notes will constitute legally binding
obligations of the Company enforceable in
accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium, and other similar laws relating
to or affecting the enforcement of
creditors' rights generally, to general
equitable principles (regardless of whether
such enforceability is considered in a
proceeding in equity or at law) and to an
implied covenant of good faith,
reasonableness and fair dealing, and will be
entitled to the benefit provided by the
Indenture equally and ratably with the
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<PAGE> 15
securities outstanding thereunder; and the
Notes and Indenture conform as to legal
matters in all material respects to the
descriptions thereof contained in the
Registration Statement and the Prospectus.
(ix) (To be delivered by both Walter M. Braswell
and WSPR, as noted) The issue and sale of
the Notes and the compliance by the Company
with all of the provisions of the Notes, the
Indenture and this Agreement and the
consummation of the transactions therein and
herein contemplated (except as to compliance
with any financial covenant requiring an
arithmetic computation not determinable at
the Execution Time as to which such counsel
need express no opinion) will not conflict
with or result in a breach of any of the
terms or provisions of, or constitute a
default under, any indenture, mortgage, deed
of trust, loan agreement or material other
agreement or instrument known, as of the
date of such opinion, to such counsel to
which the Company is a party or by which the
Company is bound or to which any of the
property or assets of the Company is
subject, nor will such action result in any
violation of the provisions of the Company's
Certificate of Incorporation, as amended, or
the Bylaws of the Company or any statute or
any order, rule or regulation known, as of
the date of such opinion, to such counsel of
any (To be delivered by Walter M. Braswell)
[New Jersey] (To be delivered by WSPR) [New
York or Federal]court or governmental agency
or body having jurisdiction over the Company
or any of its properties.
(x) (To be delivered by both Walter M. Braswell
and WSPR, as noted) No consent, approval,
authorization, order, registration or
qualification of or with any (To be
delivered by Walter M. Braswell) [New
Jersey] (To be delivered by WSPR) [New York
or Federal] court or governmental agency or
body having jurisdiction over the Company or
any of its properties is required for the
issue and sale of the Notes or the
consummation by the Company of the other
transactions contemplated by this Agreement,
or the Indenture, except such as have been
obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, registrations or
qualifications as may be required under
state securities or Blue Sky laws in
connection with the public offering of the
Notes.
(xi) (To be delivered by WSPR) The Registration
Statement, at the Effective Date, and the
Prospectus, as of the date of such opinion
(except as to the financial statements and
other financial or statistical data
contained or incorporated by reference
therein and except as to any information
contained in any Prospectus Supplement
relating to DTC or DTC's book-entry system
as to which such counsel need express no
opinion) comply as to form in all material
respects with all
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<PAGE> 16
applicable requirements of the Act, and,
with respect to the documents or portions
thereof filed with the Commission pursuant
to the Exchange Act and incorporated by
reference in the Prospectus pursuant to Item
12 of Form S-3, the Exchange Act and the
applicable instructions, rules and
regulations of the Commission thereunder; on
the basis of information received from the
Commission, at the date of such opinion, the
Registration Statement has become effective
under the Act, and, to the best knowledge of
such counsel, no proceedings for a stop
order with respect thereto have been
instituted or are pending or threatened
under Section 8 of the Act.
(xii) (To be delivered by both Walter M. Braswell
and WSPR, as noted) Based on such counsel's
participation in the preparation of the
Registration Statement (but such opinion may
state that such counsel did not
independently check or verify the
correctness of the statements made by the
Company or factual information included in
the Registration Statement and Prospectus,
and thereby may assume the correctness
thereof, except insofar as such statements
or information relate to such counsel or are
stated in the Registration Statement or
Prospectus as having been made on their
authority as experts), no facts have come to
the attention of such counsel to cause them
to believe, and such counsel have no reason
to believe, that the Registration Statement,
at the Effective Date, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading (except as to the
financial statements or other financial or
statistical data contained in or
incorporated by reference in the
Registration Statement and the Prospectus
and except as to any information contained
in any Prospectus Supplement relating to DTC
or DTC's book-entry system), or that the
Prospectus, as of the date of such opinion,
includes an untrue statement of a material
fact or omits to state a material fact
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made, not misleading
(except as to the financial statements or
other financial or statistical data
contained in or incorporated by reference in
the Registration Statement and the
Prospectus and except as to any information
contained in any Prospectus Supplement
relating to DTC or DTC's book-entry system).
(xiii) The Company is not subject to regulation
under the Public Utility Holding Company Act
of 1935.
(xiv) As to factual matters (including relating to
the Company's financial condition) included
in said opinion, such counsel may rely upon
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<PAGE> 17
certificates of public officials as of a
recent date, the warranties and
representations of the Company set forth in
this Agreement, and certificates of the
Company made pursuant to the provisions of
this Agreement.
(c) The Agents shall have received from McCarter &
English, LLP, counsel for the Agents, an opinion,
dated the Execution Time, with respect to the
issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as
the Agents may reasonably require, and the Company
shall have furnished to such counsel such documents
as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Agents a
certificate of the Company, signed by any of the
Chairman of the Board, the President, any Vice
President having responsibilities for financial
matters or the Controller or Treasurer of the
Company, dated the Execution Time, to the effect that
the signer of such certificate has carefully examined
the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and
that:
(i) The representations and warranties of the
Company in this Agreement and the Indenture
are true and correct in all material
respects and the Company has complied with
all the agreements and satisfied all the
conditions on its part to be performed or
satisfied as a condition to the obligation
of the Agents to solicit offers to purchase
the Notes.
(ii) No stop order suspending the effectiveness
of the Registration Statement has been
issued and no proceedings for that purpose
have been instituted or, to the Company's
knowledge, threatened.
(iii) (1) Neither the Company nor any of its
Subsidiaries has sustained since the date of
the latest audited financial statements
included or incorporated by reference in the
Registration Statement and the Prospectus,
any loss or interference with its business
from fire, explosion, flood or other
calamity, whether or not covered by
insurance, or from any labor dispute or
court or governmental action, order or
decree, which has had or is reasonably
likely to have a material adverse effect on
the financial position, stockholders' equity
or results of operations of the Company and
its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the
Registration Statement and the Prospectus
and (2) since the respective dates as of
which information is given in the
Registration Statement and the Prospectus,
there has not been any change in the
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<PAGE> 18
capital stock (other than pursuant to any
stock purchase, dividend reinvestment,
savings, bonus, incentive, or similar plan,
conversions of convertible securities into
common stock) or long-term debt (other than
normal amortization of debt premium and
discount, bank or finance company borrowings
and repayments in the ordinary course, or
additional issuances or repurchases of
commercial paper) of the Company or its
Subsidiaries (except as may relate to (i) a
trust fund relating to certain public
financing for The Mount Holly Water Company
relating to its Mansfield Project, and (ii)
debenture payments that may be required
pursuant to the indenture relating to the
6-3/4% Convertible Subordinated Debentures
of E'town Corporation on the death of a
holder) or any material adverse change, or
any development involving a prospective
material adverse change, in or affecting the
general affairs, management, financial
position, stockholders' equity or results of
operations of the Company and its
subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the
Registration Statement and the Prospectus.
(e) At the Execution Time, Deloitte & Touche LLP shall
have furnished to the Agents a letter, dated as of
the Execution Time, in form and substance
satisfactory to the Agents, stating in effect that:
(i) They are independent auditors with respect
to the Company within the meaning of the Act
and the applicable published rules and
regulations thereunder.
(ii) In their opinion the financial statements
and schedules of the Company included in the
Company's Annual Report on Form 10-K for the
year ended December 31, 1997, which are
incorporated by reference in the Prospectus
and examined by such firm, comply as to form
in all material respects with the applicable
accounting requirements of the Act and the
Exchange Act, and the respective published
rules and regulations thereunder.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted
auditing standards) consisting of: (A)
reading the Annual Report on Form 10-K which
contains audited consolidated financial
statements (the "Audited Amounts"), (B)
performing the procedures specified by the
American Institute of Certified Public
Accountants for a review of interim
financial information as described in SAS
No. 71, Interim Financial Information, on
the unaudited condensed interim financial
statements of the Company included in the
Registration Statement and the Prospectus
(the "Unaudited Statements"), and reading
any more recent unaudited interim financial
data of the Company, (C) reading the minutes
of meetings of the shareholders, Board of
Directors and Committees of
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<PAGE> 19
the Board of Directors of the Company held
during the period from December 31, 1997 as
set forth in the minutes book through a
specified date not more than five business
days prior to the date of such letter; and
(D) making inquiries of certain officials of
the Company who have responsibility for
financial and accounting matters regarding
the specific items for which representations
are requested in Sections 5(e)(iii)(1) to
5(e)(iii)(4), nothing has come to their
attention as a result of the foregoing
procedures that caused them to believe that:
(1) the Unaudited Statements
incorporated by reference in the
Registration Statement and the Prospectus do
not comply in form in all material respects
with the applicable accounting requirements
and with the published rules and regulations
of the Commission with respect to financial
statements included or incorporated in
Quarterly Reports on Form 10-Q under the
Exchange Act; or that any material
modifications should be made to said
Unaudited Statements for them to be in
conformity with generally accepted
accounting principles;
(2) the Audited Amounts were not
derived from the financial statements of the
Company;
(3) at the date of the latest
available monthly consolidated balance sheet
of the Company read by such accountants,
there was any change in the capital stock
(other than pursuant to any stock purchase,
dividend reinvestment, savings, bonus,
incentive, or similar plan, or conversions
of convertible securities into common stock)
or long-term debt (other than normal
amortization of debt premium and discount,
bank or finance company borrowings and
repayments in the ordinary course, or
additional issuances or repurchases of
commercial paper) of the Company or its
Subsidiaries (except as may relate to (i) a
trust fund relating to certain public
financing for The Mount Holly Water Company
relating to its Mansfield Project, and (ii)
debenture payments that may be required
pursuant to the indenture relating to the
6-3/4% Convertible Subordinated Debentures
of E'town Corporation on the death of a
holder), or any decrease in the total
shareholders' equity, as compared with
amounts shown on the latest balance sheet
included in the Audited Statements, except,
in all instances, for the above-referenced
changes or changes or decreases which are
described in such letter; or
(4) for the period subsequent to
the date of the Audited Statements to the
date of the latest available monthly
consolidated income statement of the Company
read by such accountants, there were any
decreases, as compared with the
corresponding period of the previous year,
in total operating revenues or net income of
the
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<PAGE> 20
Company, except, in all instances, for
changes or decreases which are described in
such letter.
(iv) They have compared certain dollar amounts
(or percentages derived from such dollar
amounts) (A) which appear in the Prospectus
under the caption "Ratio of Earnings to
Fixed Charges", (B) which appear or are
incorporated by reference in the Company's
Annual Report on Form 10-K incorporated by
reference in the Registration Statement and
the Prospectus under the caption
"Management's Discussion and Analysis of
Financial Condition and Results of
Operations" or (C) which appear in the most
recent of the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the
Registration Statement and the Prospectus
under the captions "Management's Discussion
and Analysis of Financial Condition and
Results of Operations" and "Ratio of
Earnings to Fixed Charges" (in each case to
the extent that such dollar amounts,
percentages and other financial information
are derived from the accounting records of
the Company subject to the internal controls
of the Company's accounting system or are
derived directly from such records by
computation) to the accounting records of
the Company or schedules prepared from data
in such records and have found such dollar
amounts, percentages and other financial
information to be in agreement.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) The Agents shall have received copies of the letters
of Representations between the Company, the Indenture
Trustee and DTC, satisfactory to each of you,
summarizing DTC's agreement to hold, safekeep and
effect book-entry transfers of the Notes.
(g) Prior to the Execution Time, the Company shall have
furnished to the Agents such further information,
documents, certificates and opinions of counsel as
the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Agents and counsel for the Agents this Agreement and all
obligations of the Agents hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing. The documents required to be
delivered by this Section 5 at the Execution Time shall be delivered at the
office of WSPR, One Battery Park Plaza, New York, NY 10004-1490.
6. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part
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<PAGE> 21
of the Company herein as of the date of any related Terms Agreement and as of
the Closing Date for such Notes, to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for the purpose of suspending the
effectiveness of the Registration Statement shall
have been instituted or threatened.
(b) If specified by any related Terms Agreement and
except to the extent modified by such Terms
Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the
Company, dated as of the Closing Date, to the effect
set forth in Section 5(d), (ii) the opinions of
Walter M. Braswell, Secretary of, and counsel to, the
Company, and of WSPR, special New York counsel for
the Company, dated as of the Closing Date,
substantially to the effect set forth in Section
5(b), (iii) the opinion of McCarter & English, LLP,
counsel for the Purchaser, dated as of the Closing
Date, substantially to the effect set forth in
Section 5(c) and (iv) the letter of Deloitte &
Touche, LLP, independent auditors for the Company,
dated as of the Closing Date, substantially to the
effect set forth in Section 5(e); provided, however,
that references to the Registration Statement and the
Prospectus in such certificate, opinions and letter
shall be to the Registration Statement and the
Prospectus as then amended and supplemented.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information,
certificates and documents as the Purchaser may
reasonably request. If any of the conditions
specified in this Section 6 shall not have been
fulfilled in all material respects when and as
provided in this Agreement and any Terms Agreement,
or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms
Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and
all obligations of the Purchaser thereunder and with
respect to the Notes subject thereto may be canceled
at, or any time prior to, the respective Closing Date
by the Purchaser. Notice of such cancellation shall
be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser, and any person who purchases pursuant to a solicitation
by the Agents, shall have the right to refuse to purchase such Note if, at the
Closing Date therefor, either (a) any condition set forth in Section 5 or 6, as
applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, there shall have occurred (i) any change in or affecting the
business or properties of the Company and its Subsidiaries, considered as one
enterprise, the effect of which, in the reasonable judgment of
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<PAGE> 22
such person, has a material adverse effect on the investment quality of such
Note or (ii) any event described in paragraphs (ii),(iii), (iv) or (v) of
Section 9(b).
8. Indemnification and Contribution.
(a) The Company will indemnify you and hold you harmless
against all losses, claims, damages or liabilities,
joint or several, to which you may become subject,
under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, any
preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus
relating to the Notes, or any amendment or supplement
thereto, or arise out of or are based upon the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and will reimburse you for any legal or
other expenses reasonably incurred by you in
connection with investigating or defending any such
action or claim; provided, however, that the Company
shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged
omission made in any preliminary prospectus, any
preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus
relating to the Notes or any such amendment or
supplement in reliance upon and in conformity with
written information furnished to the Company by you
expressly for use in the Prospectus.
(b) You will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act
or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained
in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to
the Notes, or any amendment or supplement thereto, or
arise out of or are based upon the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, in each case
to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or
omission or alleged omission was made in any
preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the
Prospectus and any other prospectus relating to the
Notes, or any amendment or supplement thereto, in
reliance upon and in conformity with written
information furnished to the Company by you expressly
for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by
the Company in connection with investigating or
defending any such action or claim. The Company
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<PAGE> 23
acknowledges that the statements set forth in the
last paragraph of the cover page, and under the
heading "Plan of Distribution," of the Prospectus
Supplement constitute the only information furnished
in writing by any of you for inclusion in the
documents referred to in the foregoing indemnity, and
you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in
respect thereof is to be made against the
indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement
thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by
the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any
indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the
indemnified party in any action for which
indemnification is sought (in which case the
indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties
except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the
indemnified party in an action, the indemnified party
shall have the right to employ separate counsel
(including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of
one such separate counsel for all indemnified parties
if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would
present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or
targets of, any such action include both the
indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded
that there may be legal defenses available to it
and/or other indemnified parties which are different
from or additional to those available to the
indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party
within a reasonable time after notice of the
institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying
party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above
in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall
contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to
reflect the relative benefits
-23-
<PAGE> 24
received by the Company on the one hand and you on
the other in connection with the statements or
omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect
thereof), as well as other equitable considerations,
including relative fault. The relative fault shall be
determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to
state a material fact relates to information supplied
by the Company on the one hand or you on the other
and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent
such statement or omission. The Company and you agree
that it would not be just and equitable if
contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other
method of allocation which does not take account of
the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified
party in connection with investigating or defending
any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any who
controls any of you within the meaning of the Act or
the Exchange Act; and the obligations of you under
this Section 8 shall be in addition to any liability
which you may otherwise have and shall extend, upon
the same terms and conditions, to each officer and
director of the Company and to each person, if any,
who controls the Company within the meaning of the
Act or the Exchange Act.
9. Termination.
(a) This Agreement will continue in effect until
terminated as provided in this Section 9. This
Agreement may be terminated by either the Company as
to you or by you as to the Company, by giving written
notice of such termination to you or the Company, as
the case may be. This Agreement shall so terminate at
the close of business on the first business day
following the receipt of such notice by the party to
whom such notice is given. In the event of such
termination, no party shall have any liability to the
other party hereto, except as provided in the third
paragraph of Section 2(a), Section 4(h), Section 8
and Section 10.
(b) Each Term Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by
notice given to the Company prior to delivery of any
payment for Notes to be purchased thereunder, if
prior to such time (i)
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<PAGE> 25
the Purchaser shall exercise its right to refuse to
purchase the Notes which are the subject of such
Terms Agreement in accordance with the provisions of
Section 7, or (ii) there shall have occurred any
outbreak or escalation of hostilities or other
national or international calamity or crisis, the
effect of which shall be such as to make it, in the
reasonable judgment of the Purchaser, impractical to
market the Notes or enforce contracts for the sale of
the Notes, or (iii) trading in any securities of the
Company shall have been suspended by the Commission
or a national securities exchange, or if trading
generally on either the American Stock Exchange or
the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices
for securities shall have been required, by either of
said exchanges or by order of the Commission or any
other governmental authority, or if a banking
moratorium shall have been declared by either
Federal, new York or New Jersey authorities, or (iv)
if the rating assigned by any "nationally recognized
statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) to the Notes
as of the date of the applicable Terms Agreement
shall have been lowered since that date, or (v) the
subject matter of any amendment or supplement to the
Registration Statement or the Prospectus prepared and
issued by the Company, or the exceptions set forth in
any letter of Deloitte & Touche LLP furnished
pursuant to Section 5(e) hereof, shall have made it,
in the judgment of the Purchaser, impracticable or
inadvisable to market the Notes or enforce contracts
for the sale of the Notes.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the directors, officers,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
4(h) and 8 hereof shall survive the termination or cancellation of this
Agreement. The provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for which an agreement to
purchase exists prior to the termination hereof shall survive any termination of
this Agreement. If at the time of termination of this Agreement any Purchaser
shall own any Notes with the intention of selling them, the provisions of
Section 4 shall remain in effect until such Notes are sold by the Purchaser.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telecopied and confirmed to such of you, at the address specified in Schedule
I hereto; or, if sent to the Company, will be mailed, delivered or telecopied
and confirmed to it at E'town Corporation, 600 South Avenue, Westfield, NJ
07091-0788 Attention: Mrs. Gail P. Brady
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
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<PAGE> 26
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New Jersey applicable to contracts made
and to be performed within the State of New Jersey.
14. Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
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<PAGE> 27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
E'TOWN CORPORATION
By:___________________________
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
A.G. EDWARDS & SONS, INC.
By: ______________________________
Title:
LEGG MASON WOOD WALKER, INCORPORATED
By: ______________________________
Title:
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<PAGE> 28
SCHEDULE I
Commissions:
The Company agrees to pay the Agent a commission equal to the following
percentage of the principal amount of each Note sold by the Agent:
Term Commission Rate
---- ---------- ----
From 1 year to less than 18 months %
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
Address for Notice to You:
Notices to A.G. Edwards & Sons, Inc. shall be directed to it at One
North Jefferson, St. Louis, Missouri 63103, Attention: [ ], and to Legg Mason
Wood Walker, Incorporated at 100 Light Street, 34th Floor, Baltimore, MD 21202,
Attention: [ ].
<PAGE> 29
EXHIBIT A
E'town Corporation
Medium-Term Notes
Administrative Procedures
Medium-Term Notes (the " Notes"), are to be offered on a continuing
basis by E'town Corporation (the "Company"). A.G. Edwards & Sons, Inc. and Legg
Mason Wood Walker, Incorporated, as agents (the "Agents"), have agreed to use
their reasonable best efforts to solicit offers to purchase the Notes. The Notes
are being sold pursuant to a Distribution Agreement between the Company and the
Agents dated _______, 1998 (the "Distribution Agreement") to which these
administrative procedures are attached as an exhibit. The Notes will be issued
under the Company's Indenture, dated as of _________, 1998 (the "Indenture"), to
Summit Bank ("Summit"), as trustee (the "Indenture Trustee"). Summit will act as
the paying agent (the "Paying Agent") for the payment of principal and premium,
if any, and interest on the Notes and will perform, as the Paying Agent, unless
otherwise specified, the other duties specified herein.
The Notes will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Notes have been registered with
the Securities and Exchange Commission (the "Commission") and will bear interest
at fixed rates ("Fixed Rate Notes").
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Summit, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certificated Note"). Except as set forth in the Prospectus or
in a pricing supplement (as defined in Section 1(c) of the Distribution
Agreement), (i) each Note will be initially issued as a Book-Entry Note and (ii)
an owner of a Book-Entry Note will not be entitled to receive a certificate
representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Book-Entry Notes will be issued in accordance with
the administrative procedures set forth in Part I hereof and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Administrative procedures applicable to both Book-Entry Notes
and Certificated Notes are set forth in Part III hereof. Administrative
responsibilities, document control and record-keeping functions will be handled
for the Company by its [Controller and Treasurer]. The Company will promptly
advise the Agents and the Indenture Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Indenture Trustee
are to communicate regarding offers to purchase Notes and the details of their
delivery.
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<PAGE> 30
To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture or the Distribution Agreement, the
relevant provisions of the Notes, the Indenture and the Distribution Agreement
shall control. Unless otherwise defined herein, terms defined in the Indenture
shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Summit will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations to
be delivered from the Company and Summit to DTC and a Medium-Term Note
Certificate Agreement between Summit, and DTC, dated as of __________, 1998 (the
"MTN Certificate Agreement"), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company
will issue a single global security in fully registered
form without coupons (a "Global Security") representing
up to $[75,000,000] principal amount of all such Notes
that have the same date of maturity, ("Maturity Date"),
redemption provisions, if any, and interest rate. Each
Global Security will be dated and issued as of the date
of its authentication by the Indenture Trustee. No
Global Security will represent any Certificated Note.
Identification
Numbers: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP
numbers (including tranche numbers), which series
consists of approximately _____ CUSIP numbers and
relates to Global Securities representing the Book-Entry
Notes. The Company has obtained from the CUSIP Service
Bureau a written list of such series of reserved CUSIP
numbers and has delivered to DTC and the Indenture
Trustee a written list of ___ CUSIP numbers of such
series. The Company will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure
"B". It is expected that DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Securities. At any
time when fewer than ___ of the reserved CUSIP numbers
of the series remain unassigned to Global Securities,
the Indenture Trustee shall so advise the Company and,
if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Company shall deliver
a list of such additional CUSIP numbers to the Indenture
Trustee and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security Register
maintained under the Indenture. It is expected that the
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC
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<PAGE> 31
(with respect to such Note, the "Participants") to act
as agent or agents for such owner in connection with the
book-entry system maintained by DTC, and it is expected
that DTC will record in book-entry form, in accordance
with instructions provided by such Participants, a
credit balance with respect to such beneficial owner in
such Note in the account of such Participants. The
ownership interest of such beneficial owner in such Note
will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect Participants
in DTC) acting on behalf of beneficial transferees and
transferors of such Note.
Consolidations: Upon receipt of written instructions from the Company,
Summit may deliver to DTC and the CUSIP Service Bureau
at any time a written notice of consolidation (a copy of
which shall be attached to the resulting Global
Security) specifying (i) the CUSIP numbers of two or
more Outstanding Global Securities that represent
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice
is delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new CUSIP
number to be assigned to such replacement Global
Security. Upon receipt of such a notice, it is expected
that DTC will send to its participants (including
Summit) a written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, Summit will
deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be exchanged
will no longer be valid. On the specified exchange date,
Summit will exchange such Global Securities for a single
Global Security bearing the new CUSIP number, and the
CUSIP numbers of the exchanged Global Securities will,
in accordance with CUSIP Service Bureau procedures, be
canceled and not reassigned until the Book-Entry Notes
represented by such exchanged Global securities have
matured or been redeemed.
Maturities: Each Book-Entry Note will mature on a date not less than
one year nor more than 30 years after the date of
settlement for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. Global Securities will be
denominated in principal amounts not in excess of
$___________.
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<PAGE> 32
Interest: General. Interest on each Book-Entry Note will accrue
from and including the original issue date of, or the
last date to which interest has been paid on, the Global
Security representing such Note. Each payment of
interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date or
the Maturity Date or, upon earlier redemption or
repayment, the date of such redemption or repayment (the
"Redemption Date"), as the case may be. Interest payable
on the Maturity Date or the Redemption Date of a
Book-Entry Note will be payable to the person to whom
the principal of such Note is payable. Standard & Poor's
Corporation will use the information received in the
pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other information
regarding the related Global Security in the appropriate
weekly bond report published by Standard & Poor's
Corporation.
Record Dates. The record date with respect to any Interest Payment
Date shall be the [December 15 or June 15], as the case
may be (whether or not a Business Day) immediately
preceding such Interest Payment Date (each a "Regular
Record Date").
Fixed Rate Book-
Entry Notes: Interest payments on Fixed Rate Book-Entry Notes will be
made semi-annually on [January 1 and July 1] of each
year and on the Maturity Date or the Redemption Date;
provided, however, that in the case of a Fixed Rate
Book-Entry Note issued between a Regular Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the
next succeeding Regular Record Date.
Payments of
Interest: Payment of Interest Only. Promptly after each Principal
and Regular Record Date, the Paying Agent will deliver
to the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each
Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with the
Maturity Date) and the total of such amounts. It is
expected that DTC will confirm the amount payable on
each Global Security on such Interest Payment Date by
reference to the appropriate (daily or weekly) bond
reports published by Standard & Poor's Corporation. The
Company will pay to the Paying Agent the total amount of
interest due on such Interest Payment Date (other than
on the Maturity Date), and the Paying Agent will pay
such amount to DTC at the times and in the manner set
forth under "Manner of Payment" below. If any Interest
Payment Date for a Book-Entry Note is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day, except that, if such Note
is a LIBOR Note and such next succeeding Business Day is
in the next succeeding calendar month, such payment will
be made on the immediately
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preceding Business Day; and no interest shall accrue on
such payment for the period from and after such Interest
Payment Date.
Payments on Maturity
Date, Etc.: On or about the first Business Day of each month on
which a payment is due, the Paying Agent will deliver to
the Company and DTC a written list of principal and, to
the extent known at such time, interest to be paid on
each Global Security maturing either on the Maturity
Date or the Redemption Date in the following month. The
Company and DTC will confirm with the Paying Agent the
amounts of such principal and interest payments with
respect to each such Global Security on or about the
fifth Business Day preceding the Maturity Date or the
Redemption Date, as the case may be, of such Global
Security. The Company will pay to the Paying Agent the
principal amount of such Global Security, together with
interest due on such Maturity Date or Redemption Date in
the manner set forth below under "Manner of Payment".
The Paying Agent will pay such amounts to DTC at the
times and in the manner set forth below under "Manner of
Payment". If the Maturity Date or the Redemption Date of
a Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made
on the next succeeding Business Day, except that, if
such Note is a LIBOR Note and such next succeeding
Business Day is in the next succeeding calendar month,
such payment will be made on the immediately preceding
Business Day; and no interest shall accrue on such
payment for the period from and after such Maturity Date
or the Redemption Date. Promptly after payment to DTC of
the principal and interest due at the Maturity Date or
the Redemption Date of such Global Security, the Paying
Agent will cancel such Global Security in accordance
with the terms of the Indenture.
Manner of Payment: The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or on the
Maturity Date or the Redemption Date shall be paid by
the Company to the Paying Agent in immediately available
funds for use by the Paying Agent no later than 9:30
A.M. (New York City time) on such date. The Company will
make such payment on such Global Securities by wire
transfer to the Paying Agent or by the Paying Agent's
debiting the account of the Company maintained with the
Paying Agent.The Company will confirm such instructions
in writing to the Paying Agent. Prior to 10:00 A.M. (New
York City time) on each Maturity Date or Redemption Date
or as soon as reasonably possible thereafter, the Paying
Agent will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously agreed
to with DTC) to an account at the Federal Reserve Bank
of New York previously agreed to with DTC, in funds
available for immediate use by DTC, each payment of
principal (together with interest thereon) due on Global
Securities on any Maturity Date or Redemption Date. On
each Interest Payment Date, interest payments shall be
made to DTC in same day funds in accordance with
existing arrangements between the Paying Agent and DTC.
Thereafter, on each such date, it is
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<PAGE> 34
expected that DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Paying Agent shall have any
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes: The amount of any taxes required under applicable law to
be withheld from any interest payment on a Book-Entry
Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible
for forwarding payments and materials directly to the
beneficial owner of such Note.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following the date of sale of a Book-Entry Note unless
the Company, the Indenture Trustee and the purchaser
agree to settlement on another day that shall be no
earlier than the next Business Day.
Settlement Procedures with regard to each Book-Entry
Note sold by the Company through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Company by telephone,
followed by facsimile transmission, of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. The interest rate.
4. Interest Payment Dates.
5. Redemption provisions, if any, or
provisions for the repayment or purchase
by the Company at the option of the
Holder, if any.
6. Settlement date.
7. Issue price.
8. Agent's commission, determined as
provided in Section 2(a) of the
Distribution Agreement.
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<PAGE> 35
9. Original Issue Discount, if any.
B. The Company will assign a CUSIP number to such
Book-Entry Note and will advise Summit by
facsimile transmission or other mutually
acceptable means of the information set forth in
Settlement Procedure "A" above, the name of such
Agent and the CUSIP number assigned to such
Book-Entry Note. The Company will notify the
Agent of such CUSIP number by telephone as soon
as practicable. Each such communication by the
Company shall constitute a representation and
warranty by the Company to Summit and the Agent
that (i) such Note is then, and at the time of
issuance and sale thereof will be, duly
authorized for issuance and sale by the Company,
and (ii) the Global Security representing such
Note will conform with the terms of the
Indenture pursuant to which such Note and Global
Security are issued.
C. Summit will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information
to DTC, which shall route such information to
such Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. Identification of such Note as a Fixed
Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related Regular Record Date
and amount of interest payable on such
Interest Payment Date.
4. CUSIP number of the Global Security
representing such Note.
5. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. The Indenture Trustee will complete and
authenticate the Global Security representing
such Note.
E. It is expected that DTC will credit such Note to
Summit's participant account at DTC.
F. Summit will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit such Note to Summit's
participant account and credit such Note to such
Agent's participant account and (ii) debit such
Agent's settlement account and credit
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<PAGE> 36
Summit's settlement account for an amount equal
to the price of such Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty
by Summit to DTC that (a) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (b) Summit is
holding such Global Security pursuant to the MTN
Certificate Agreement.
G. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent for
an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. Summit will, upon confirming receipt of such
funds from the Agent, wire transfer to the
account of the Company maintained at [name of
bank] (for credit to E'town Corporation, Account
No. ___________) in immediately available funds
in the amount transferred to Summit in
accordance with Settlement Procedure "F".
J. Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to
the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent, as
agent, and accepted by the Company for settlement on the
first Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth below:
Settlement
Procedure Time
- --------- ----
A. 11:00 A.M. on the sale date
B. 12:00 Noon on the sale date
C. 5:00 P.M. on the sale date
D. 3:00 P.M. on the sale date
E. 8:05 A.M. on the settlement date
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<PAGE> 37
F-G 3:00 P.M. on the settlement date
H. 4:30 P.M. on the settlement date
I-J. 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00 Noon on the first Business
Day after the sale date with respect to Settlement Procedures "A" and "B",
respectively, and no later than 5:00 P.M. on the first Business Day after the
sale date, with respect to Settlement Procedure "C". Settlement Procedure "D"
shall occur no later than 3:00 P.M. on the last Business Day prior to the
settlement date. Settlement Procedures "H" and "I" are subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or canceled, the
Company will instruct Summit by no later than 12:00 Noon on the Business Day
immediately preceding the scheduled settlement date to deliver to DTC through
DTC's Participant Terminal System a cancellation message to such effect and
Summit will enter such message, by no later than 2:00 P.M. on such Business Day,
through DTC's Participation Terminal System.
Failure to
Settle: If Summit or the Agent fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F" or "G," Summit may upon the
approval of the Company deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Note to
Summit's participant account, provided that Summit's
participant account contains a principal amount of the
Global Security representing such Note that is at least
equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security,
Summit will mark such Global Security "canceled", make
appropriate entries in Summit's records and send such
canceled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not reassigned until the Book-Entry Notes
represented by such Global Security have matured or been
redeemed. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, Summit will
exchange such Global Security for another Global
Security, which shall represent the Book-Entry Notes
previously represented by the surrendered Global
Security with respect to which a withdrawal message has
not been processed and shall bear the CUSIP number of
the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
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<PAGE> 38
Procedures "G" and "F", respectively. Thereafter, Summit
will deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than a
default by the Agent in the performance of its
obligations hereunder or under the Distribution
Agreement, then the Company will reimburse such Agent or
Summit, as applicable, on an equitable basis for the
loss of the use of funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Security, the Indenture Trustee will provide, in
accordance with Settlement Procedure "D," for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Summit will serve as registrar in connection with the Certificated
Notes.
Maturities: Each Certificated Note will mature on a date not less
than one year and not more than 30 years after the date
of delivery by the Company of such Note.
Price to
Public: Each Certificated Note will be issued at the percentage
of principal amount specified in the Prospectus relating
to the Notes.
Denominations: The denomination of any Certificated Note will be a
minimum of $1,000 or any amount in excess thereof which
is an integral multiple of $1,000.
Registration: Certificated Notes will be issued only in fully
registered form.
Interest: General. Interest on each Certificated Note will accrue
from and including the original issue date of, or the
last date to which interest has been paid on, such Note.
Each payment of interest on a Certificated Note will
include interest accrued to but excluding the Interest
Payment Date or the Maturity Date or, upon earlier
redemption, the Redemption Date, as the case may be.
Interest payable on the Maturity Date or the Redemption
Date of a Certificated Note will be payable to the
person to whom the principal of such Note is payable.
Record Dates. Unless otherwise set forth in the
applicable Pricing Supplement, the record dates with
respect to the Interest Payment Dates shall be the
Regular Record Dates.
-10-
<PAGE> 39
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to "Settlement Procedures" below,
interest payments on Fixed Rate Certificated Notes will
be made semi-annually on [January 1 and July 1] and on
the Maturity Date or the Redemption Date; provided,
however, that in the case of a Fixed Rate Certificated
Note issued between a Regular Record Date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Regular Record Date.
Payments of
Principal
and Interest: Interest will be payable to the person and in whose name
a Certificated Note is registered at the close of
business on the Regular Record Date next preceding an
Interest Payment Date; provided, however, that, in the
case of a Certificated Note originally issued between a
Regular Record Date and an Interest Payment Date, the
first payment of interest will be made on the Interest
Payment Date following the next succeeding Regular
Record Date to the person in whose name such Note was
registered at the close of business on such next Regular
Record Date. Unless other arrangements are made
acceptable to the Company, all interest payments
(excluding interest payments made on the Maturity Date
or the Redemption Date) on a Certificated Note will be
made by check mailed to the person entitled thereto as
provided above. Summit will pay the principal amount of
each Certificated Note on the Maturity Date upon
presentation of such Certificated Note to Summit at the
principal corporate trust office of Summit in New York,
New York. Such payment, together with payment of
interest due on the Maturity Date, will be made from
funds deposited with Summit by the Company. Summit will
be responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law. Within
10 days following each Regular Record Date, the
Indenture Trustee will inform the Company of the total
amount of the interest payments to be made by the
Company on the next succeeding Interest Payment Date.
The Indenture Trustee will provide monthly to the
Company a list of the principal and interest to be paid
on Certificated Notes maturing in the next succeeding
month.
Settlement
Procedures: The settlement date with respect to any offer to
purchase Certificated Notes accepted by the Company will
be a date on or before the fifth Business Day next
succeeding the date of acceptance unless otherwise
agreed by the purchaser, the Indenture Trustee and the
Company and shall be specified upon acceptance of such
offer. The Company will instruct the Indenture Trustee
to effect delivery of each Certificated Note no later
than 1:00 P.M. (New York City time) on the settlement
date to the Presenting Agent (as defined under
"Preparation of Pricing Supplement" in Part III below)
for delivery to the purchaser.
Settlement
Procedures: For each offer to purchase a Certificated Note that is
accepted by the Company, the Presenting Agent will
provide (unless provided by the purchaser directly to
the
-11-
<PAGE> 40
Company) by telephone and facsimile transmission or
other mutually acceptable means the following
information to the Company:
1. Name in which such Note is to be registered (the
"Registered Owner").
2. Address of the Registered Owner and, if
different, address for payment of principal and
interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount.
5. Maturity Date.
6. The interest rate.
7. Interest Payment Dates.
8. Redemption provisions, if any, or provisions for
the repayment or repurchase by the Company at
the option of the Holder, if any.
9. Settlement date.
10. Issue price.
11. Agent's commission, determined as provided in
Section 2(a) of the Distribution Agreement.
The Presenting Agent will advise the Company of
the foregoing information (unless provided by the
purchaser directly to the Company) for each offer to
purchase a Certificated Note solicited by such Agent and
accepted by the Company in time for the Indenture
Trustee to prepare and authenticate the required
Certificated Note. Before accepting any offer to
purchase a Certificated Note to be settled in less than
three Business Days, the Company shall verify that the
Indenture Trustee will have adequate time to prepare and
authenticate such Note. After receiving from the
Presenting Agent the details for each offer to purchase
a Certificated Note that has been accepted by the
Company, the Company will, after recording the details
and any necessary calculations, provide appropriate
documentation to the Indenture Trustee, including the
information provided by the Presenting Agent necessary
for the preparation and authentication of such Note.
Note Deliveries
and Cash
Payments: Upon receipt of appropriate documentation and
instructions, the Company will cause the Indenture
Trustee to prepare and authenticate the pre-printed
4-ply
-12-
<PAGE> 41
Certificated Note packet containing the following
documents in forms approved by the Company, the
Presenting Agent and the Indenture Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Indenture Trustee.
Each Certificated Note shall be authenticated on the
settlement date therefor. The Indenture Trustee will
authenticate each Certificated Note and deliver it (with
the confirmation) to the Presenting Agent (and deliver
the stubs as indicated above), all in accordance with
written or electronic instructions (or oral instructions
confirmed in writing (which may be given by facsimile
transmission) on the next Business Day) from the
Company. Delivery by the Indenture Trustee of each
Certificated Note will be made in accordance with said
instructions against receipts therefor and in connection
with contemporaneous receipt by the Company from the
Presenting Agent on the settlement date in immediately
available funds of an amount equal to the issue price of
such Note less the Presenting Agent's commission.
Upon verification ("Verification") by the Presenting
Agent that a Certificated Note has been prepared and
properly authenticated by the Indenture Trustee and
registered in the name of the purchaser in the proper
principal amount and other terms in accordance with the
aforementioned confirmation, payment will be made to the
Company by the Presenting Agent the same day as the
Presenting Agent's receipt of the Certificated Note in
immediately available funds. Such payment shall be made
by the Presenting Agent only upon prior receipt by the
Presenting Agent of immediately available funds from or
on behalf of the purchaser unless the Presenting Agent
decides, at its option, to advance its own funds for
such payment against subsequent receipt of funds from
the purchaser.
Upon delivery of a Certificated Note to the Presenting
Agent, Verification by the Presenting Agent and the
giving of instructions for payment, the Presenting Agent
shall promptly deliver such Note to the purchaser. In
the event any Certificated Note is incorrectly prepared,
the Indenture Trustee shall promptly issue a replacement
Certificated Note in exchange for such incorrectly
prepared Note.
Failure
To Settle: If the Presenting Agent, at its own option, has advanced
its own funds for payment against subsequent receipt of
funds from the purchaser, and if the purchaser shall
fail to make payment for the Certificated Note on the
settlement date therefor, the Presenting Agent will
promptly notify the Indenture Trustee and the Company by
telephone, promptly confirmed in writing (but no later
than the next Business Day). In such event, the Company
shall promptly provide the Indenture Trustee with
appropriate documentation and instructions consistent
with these procedures for the return of the Certificated
Note to the Indenture Trustee and the Presenting Agent
will promptly return the Certificated Note to the
Indenture Trustee. Upon (i)
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<PAGE> 42
confirmation from the Indenture Trustee in writing
(which may be given by facsimile transmission) that the
Indenture Trustee has received the Certificated Note and
upon (ii) confirmation from the Presenting Agent in
writing (which may be given by facsimile transmission)
that the Presenting Agent has not received payment from
the purchaser (the matters referred to in clauses (i)
and (ii) are referred to hereinafter as the
"Confirmations"), the Company will promptly pay to the
Presenting Agent an amount in immediately available
funds equal to the amount previously paid by the
Presenting Agent in respect of such Note. Assuming
receipt of the Certificated Note by the Indenture
Trustee and of the Confirmations by the Company, such
payment will be made on the settlement date, if
reasonably practical, and in any event not later than
the Business Day following the date of receipt of the
Certificated Note and Confirmations. If a purchaser
shall fail to make payment for the Certificated Note for
any reason other than the failure of the Presenting
Agent to provide the necessary information to the
Company as described above for settlement or to provide
a confirmation to the purchaser within a reasonable
period of time as described above or otherwise to
satisfy its obligation hereunder or in the Distribution
Agreement, and if the Presenting Agent shall have
otherwise complied with its obligations hereunder and in
the Distribution Agreement, the Company will reimburse
the Presenting Agent on an equitable basis for its loss
of the use of funds during the period when they were
credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Indenture
Trustee will void such Note, make appropriate entries in
its records and send such cancelled Note to the Company;
and upon such action, the Certificated Note will be
deemed not to have been issued, authenticated and
delivered.
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH BOOK-ENTRY NOTES AND
CERTIFICATED NOTES
Calculation
Of Interest: Fixed Rate Notes. Interest on Fixed Rate Notes
(including interest for partial periods) will be
calculated on the basis of a 360-day year of twelve
thirty-day months. (Examples of interest calculations
are as follows: The period from August 15, 1999 to
February 15, 2000 equals 6 months and 0 days, or 180
days; the interest payable equals 180/360 times the
annual rate of interest times the principal amount of
the Note. The period from September 17, 1999 to February
15, 2000 equals 4 months and 28 days, or 148 days; the
interest payable equals 148/360 times the annual rate of
interest times the principal amount of the Note.)
-14-
<PAGE> 43
Procedure
For Rate
Setting and
Posting: The Company and the Agents will discuss from time to
time the aggregate amount of, the issuance price of, and
the interest rates to be borne by, Notes that may be
sold as a result of the solicitation of offers by the
Agents. If the Company decides to set prices of, and
rates borne by, any Notes in respect of which the Agents
are to solicit offers (the setting of such prices and
rates to be referred to herein as "posting") or if the
Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance
of Offers: If the Company posts prices and rates as provided above,
each Agent as agent for and on behalf of the Company,
shall promptly accept offers received by the Agent to
purchase Notes at the prices and rates so posted,
subject to (i) any instructions from the Company
received by the Agent concerning the aggregate principal
amount of such Notes to be sold at the prices and rates
so posted or the period during which such posted prices
and rates are to be in effect, (ii) any instructions
from the Company received by each Agent changing or
revoking any posted prices and rates, (iii) compliance
with the securities laws of the United States and all
other jurisdictions and (iv) such Agent's right to
reject any such offer as provided below.
If the Company does not post prices and rates and an
Agent receives an offer to purchase Notes or, if while
posted prices and rates are in effect, the Agent
receives an offer to purchase Notes on terms other than
those posted by such Company, the Agent will promptly
advise the Company of each such offer other than offers
rejected by such Agent as provided below. The Company
will have the sole right to accept any such offer to
purchase Notes. The Company may reject any such offer in
whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase Notes
received by it in whole or in part.
Preparation
Of Pricing
Supplement: If any offer to purchase an Note is accepted by the
Company, the Company, with the approval of the Agent
that presented such offer (the "Presenting Agent"), will
prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note and will arrange to
have a copy electronically filed with the Commission in
accordance with the applicable paragraph of Rule 424
under the Act and the provision of Regulation S-T
thereunder and will supply at least 10 copies thereof
(or additional copies if requested) to the Presenting
Agent. The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of
such Note.
-15-
<PAGE> 44
In each instance that a Pricing Supplement is prepared,
the Agents will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will
be destroyed.
Procedures
For Rate
Changes: When the Company has determined to change the interest
rates of Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend
solicitation of offers. Each Agent will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the
Agents of the new interest rates, the Agents may resume
solicitation of offers. Until such time only
"indications of interest" may be recorded.
Suspension of
Solicitation,
Amendment or
Supplement of
Prospectus: The Company may instruct the Agents to suspend at any
time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt
of such instructions from the Company, the Agents will
forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company
has advised them that such solicitation may be resumed.
If the Company decides to amend or supplement the
Registration Statement (as defined in Section 1(c) of
the Distribution Agreement) or the Prospectus (except
for a supplement relating to an offering of securities
other than the Notes), it will promptly advise the
Agents and the Indenture Trustee and will furnish the
Agent and the Indenture Trustee with the proposed
amendment or supplement in accordance with the terms of,
and its obligations under, the Distribution Agreement.
The Company will, consistent with such obligations,
promptly advise each Agent and the Indenture Trustee
whether orders outstanding at the time each Agent
suspends solicitation may be settled and whether copies
of such Prospectus and Prospectus Supplement as in
effect at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made in
the event that the Company determines that such orders
may not be settled or that copies of such Prospectus,
Prospectus Supplement and Pricing Supplement may not be
so delivered.
The Company will file with the Commission for filing
therewith any supplement to the Prospectus relating to
the Notes, provide the Agent with copies of any such
supplement, and confirm to the Agents that such
supplement has been filed with the Commission pursuant
to the applicable paragraph of Rule 424.
Confirmation: For each offer to purchase a Note solicited by an Agent
and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the
purchaser,
-16-
<PAGE> 45
with a copy to the Company, setting forth the details
set forth above and delivery and payment instructions.
Trustee/Paying
Agent Not to
Risk Funds: Nothing herein shall be deemed to require the Indenture
Trustee/Paying Agent to risk or expend its own funds in
connection with any payment to the Company, DTC, the
Agents or the purchaser or a holder, it being understood
by all parties that payments made by the Indenture
Trustee/Paying Agent to the Company, DTC, the Agent or a
purchaser or holder shall be made only to the extent
that funds are provided to the Indenture Trustee/Paying
Agent for such purpose.
Authenticity
of Signatures: The Company will cause the Indenture Trustee to furnish
the Agents from time to time with the specimen
signatures of each of the Indenture Trustee's officers,
employees or agents who has been authorized by the
Indenture Trustee to authenticate Notes, but the Agents
will have no obligation or liability to the Company or
the Indenture Trustee in respect of the authenticity of
the signature of any officer, employee or agent of the
Company or the Indenture trustee on any such Note.
Payment of
Expenses: Each Agent shall forward to the Company, on a monthly
basis, a statement of the reasonable out-of-pocket
expenses incurred by such Agent during that month which
are reimbursable to it pursuant to the terms of the
Distribution Agreement. The Company will remit payment
to the Agent currently on a monthly basis.
Delivery of
Prospectus: A copy of the Prospectus, Prospectus Supplement and
Pricing Supplement relating to a Note must accompany or
precede the earliest of any written offer of such Note,
confirmation of the purchase of such Note or payment for
such Note by its purchaser. If notice of a change in the
terms of the Notes is received by an Agent between the
time an order for an Note is placed and the time written
confirmation thereof is sent by such Agent to a customer
or his agent, such confirmation shall be accompanied by
a Prospectus, Prospectus Supplement and Pricing
Supplement setting forth the terms in effect when the
order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement of Prospectus"
above, each Agent will deliver a Prospectus, Prospectus
Supplement and Pricing Supplement as herein described
with respect to each Note sold by it.
-17-
<PAGE> 46
EXHIBIT C
TERMS AGREEMENT
E'town Corporation
600 South Avenue
Westfield, NJ 07091-0788
Attention:
Subject in all respects to the terms and conditions of the Distribution
Agreement (the "Distribution Agreement"), dated _________ __, 199_, among A.G.
Edwards & Sons, Inc., Legg Mason Wood Walker, Incorporated and E'town
Corporation (the "Company"), the undersigned agrees to purchase the following
principal amount of the Company's ______________ Medium-Term Notes (the
"Notes"):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount [plus accrued interest from , 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor Method of Payment:
Modification, if any, in the requirements to deliver the documents specified in
Section 6(b) of the Distribution Agreement:
Period during which additional Notes may not be sold pursuant to Section 4(m) of
the Distribution Agreement:
Book-Entry Notes or Certificated Notes:
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<PAGE> 47
This Agreement shall be governed by and construed in accordance with
the laws of New Jersey.
[Insert name of Purchaser(s)]
By___________________________
Title:
Accepted: , 199_
E'TOWN CORPORATION
By___________________________
Title:
-19-
<PAGE> 1
Exhibit 4(a)
-----------------------------------------
E'TOWN CORPORATION
to
SUMMIT BANK
as Trustee
---------
INDENTURE
(For Unsecured Debt Securities)
Dated as of November __, 1998
-----------------------------------------
<PAGE> 2
E'TOWN CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF NOVEMBER __, 1998
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
<S> <C>
Section 310 (a)(1).............................................................909
(a)(2).............................................................909
(a)(3).............................................................914
(a)(4).............................................................Not Applicable
(b)................................................................908
...................................................................910
Section 311 (a)................................................................913
(b)................................................................913
(c)................................................................913
Section 312 (a)................................................................1001
(b)................................................................1001
(c)................................................................1001
Section 313 (a)................................................................1002
(b)................................................................1002
(c)................................................................1002
Section 314 (a)................................................................1002
(a)(4).............................................................606
(b)................................................................Not Applicable
(c)(1).............................................................102
(c)(2).............................................................102
(c)(3).............................................................Not Applicable
(d)................................................................Not Applicable
(e)................................................................102
Section 315 (a)................................................................901
...................................................................903
(b)................................................................902
(c)................................................................901
(d)................................................................901
(e)................................................................814
Section 316 (a)................................................................812
...................................................................813
(a)(1)(A)..........................................................802
...................................................................812
(a)(1)(B)..........................................................813
(a)(2).............................................................Not Applicable
(b)................................................................808
Section 317 (a)(1).............................................................803
(a)(2).............................................................804
(b)................................................................603
Section 318 (a)................................................................107
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........................................................1
SECTION 101. Definitions.................................................................................1
SECTION 102. Compliance Certificates and Opinions........................................................8
SECTION 103. Form of Documents Delivered to Trustee......................................................9
SECTION 104. Acts of Holders.............................................................................9
SECTION 105. Notices, Etc. to Trustee and Company......................................................11
SECTION 106. Notice to Holders of Securities; Waiver....................................................12
SECTION 107. Conflict with Trust Indenture Act..........................................................12
SECTION 108. Effect of Headings and Table of Contents...................................................12
SECTION 109. Successors and Assigns.....................................................................12
SECTION 110. Separability Clause........................................................................13
SECTION 111. Benefits of Indenture......................................................................13
SECTION 112. Governing Law..............................................................................13
SECTION 113. Legal Holidays.............................................................................13
ARTICLE II
SECURITY FORMS..................................................................................................13
SECTION 201. Forms Generally............................................................................13
SECTION 202. Form of Trustee's Certificate of Authentication............................................14
ARTICLE III
THE SECURITIES..................................................................................................14
SECTION 301. Amount Unlimited; Issuable in Series.......................................................14
SECTION 302. Denominations..............................................................................17
SECTION 303. Execution, Authentication, Delivery and Dating.............................................17
SECTION 304. Temporary Securities.......................................................................20
SECTION 305. Registration, Registration of Transfer and Exchange........................................20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...........................................22
SECTION 307. Payment of Interest; Interest Rights Preserved.............................................22
SECTION 308. Persons Deemed Owners......................................................................24
SECTION 309. Cancellation by Security Registrar.........................................................24
SECTION 310. Computation of Interest....................................................................24
SECTION 311. Payment to Be in Proper Currency...........................................................24
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<TABLE>
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SECTION 312. CUSIP Numbers..............................................................................25
ARTICLE IV
REDEMPTION OF SECURITIES........................................................................................25
SECTION 401. Applicability of Article...................................................................25
SECTION 402. Election to Redeem; Notice to Trustee......................................................25
SECTION 403. Selection of Securities to Be Redeemed.....................................................25
SECTION 404. Notice of Redemption.......................................................................26
SECTION 405. Securities Payable on Redemption Date......................................................27
SECTION 406. Securities Redeemed in Part................................................................27
ARTICLE V
SINKING FUNDS...................................................................................................28
SECTION 501. Applicability of Article...................................................................28
SECTION 502. Satisfaction of Sinking Fund Payments with Securities......................................28
SECTION 503. Redemption of Securities for Sinking Fund..................................................28
ARTICLE VI
COVENANTS.......................................................................................................29
SECTION 601. Payment of Principal, Premium and Interest.................................................29
SECTION 602. Maintenance of Office or Agency............................................................29
SECTION 603. Money for Securities Payments to Be Held in Trust..........................................30
SECTION 604. Corporate Existence........................................................................31
SECTION 605. Maintenance of Properties..................................................................31
SECTION 606. Annual Officer's Certificate as to Compliance..............................................32
SECTION 607. Waiver of Certain Covenants................................................................32
SECTION 608. Liens......................................................................................32
SECTION 609. Restricted Investments.....................................................................32
ARTICLE VII
SATISFACTION AND DISCHARGE......................................................................................33
SECTION 701. Satisfaction and Discharge of Securities...................................................33
SECTION 702. Satisfaction and Discharge of Indenture....................................................36
SECTION 703. Application of Trust Money.................................................................36
</TABLE>
2
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<TABLE>
<CAPTION>
ARTICLE VIII
<S> <C>
EVENTS OF DEFAULT; REMEDIES.....................................................................................37
SECTION 801. Events of Default..........................................................................37
SECTION 802. Acceleration of Maturity; Rescission and Annulment.........................................38
SECTION 803. Collection of Indebtedness and Suits for Enforcement by Trustee............................39
SECTION 804. Trustee May File Proofs of Claim...........................................................40
SECTION 805. Trustee May Enforce Claims Without Possession of Securities................................40
SECTION 806. Application of Money Collected.............................................................40
SECTION 807. Limitation on Suits........................................................................41
SECTION 808. Unconditional Right of Holders to Receive Principal, Premium and Interest..................41
SECTION 809. Restoration of Rights and Remedies.........................................................42
SECTION 810. Rights and Remedies Cumulative.............................................................42
SECTION 811. Delay or Omission Not Waiver...............................................................42
SECTION 812. Control by Holders of Securities...........................................................42
SECTION 813. Waiver of Past Defaults....................................................................43
SECTION 814. Undertaking for Costs......................................................................43
SECTION 815. Waiver of Stay or Extension Laws...........................................................43
ARTICLE IX
THE TRUSTEE.....................................................................................................44
SECTION 901. Certain Duties and Responsibilities........................................................44
SECTION 902. Notice of Defaults.........................................................................45
SECTION 903. Certain Rights of Trustee..................................................................45
SECTION 904. Not Responsible for Recitals or Issuance of Securities.....................................46
SECTION 905. May Hold Securities........................................................................46
SECTION 906. Money Held in Trust........................................................................47
SECTION 907. Compensation and Reimbursement.............................................................47
SECTION 908. Disqualification; Conflicting Interests....................................................47
SECTION 909. Corporate Trustee Required; Eligibility....................................................48
SECTION 910. Resignation and Removal; Appointment of Successor..........................................48
SECTION 911. Acceptance of Appointment by Successor.....................................................50
SECTION 912. Merger, Conversion, Consolidation or Succession to Business................................51
SECTION 913. Preferential Collection of Claims Against Company..........................................51
SECTION 914. Co-trustees and Separate Trustees..........................................................52
SECTION 915. Appointment of Authenticating Agent........................................................53
ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............................................................54
SECTION 1001. Lists of Holders...........................................................................54
</TABLE>
3
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<TABLE>
<S> <C>
SECTION 1002. Reports by Trustee and Company.............................................................55
ARTICLE XI
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER.............................................................55
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms.......................................55
SECTION 1102. Successor Corporation Substituted..........................................................56
ARTICLE XII
SUPPLEMENTAL INDENTURES..........................................................................................56
SECTION 1201. Supplemental Indentures Without Consent of Holders.........................................56
SECTION 1202. Supplemental Indentures With Consent of Holders............................................58
SECTION 1203. Execution of Supplemental Indentures.......................................................59
SECTION 1204. Effect of Supplemental Indentures..........................................................60
SECTION 1205. Conformity With Trust Indenture Act........................................................60
SECTION 1206. Reference in Securities to Supplemental Indentures.........................................60
SECTION 1207. Modification Without Supplemental Indenture................................................60
ARTICLE XIII
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING......................................................................61
SECTION 1301. Purposes for Which Meetings May Be Called..................................................61
SECTION 1302. Call, Notice and Place of Meetings.........................................................61
SECTION 1303. Persons Entitled to Vote at Meetings.......................................................62
SECTION 1304. Quorum; Action.............................................................................62
SECTION 1305. Attendance at Meetings; Determination of Voting Rights.....................................63
SECTION 1306. Counting Votes and Recording Action of Meetings............................................64
SECTION 1307. Action Without Meeting.....................................................................64
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.................................................64
SECTION 1401. Liability Solely Corporate.................................................................64
SECTION 1402. Counterparts...............................................................................65
</TABLE>
4
<PAGE> 7
THIS INDENTURE, dated as of November __, 1998, between E'TOWN
CORPORATION, a corporation duly organized and existing under the laws of the
State of New Jersey (herein called the "Company"), having its principal office
600 South Avenue, Westfield, New Jersey 07091-0788, and SUMMIT BANK, a New
Jersey corporation, having its principal corporate trust office at Hackensack,
New Jersey, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to be issued from time
to time in one or more series as contemplated herein; and all acts necessary to
make this Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are to be authenticated, issued and delivered and in
consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation or, at
the election of the Company from time to time, at the
<PAGE> 8
date of the execution and delivery of this Indenture; provided,
however, that in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent required,
conform to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction
over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined
in that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer, or any
other duly authorized officer of the Company.
"Board of Directors" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the
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<PAGE> 9
date of execution and delivery of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body, if any, per forming such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Consensual Lien" means any Lien that is voluntarily agreed to
or consented to by the Company or that has been granted or voluntarily created
by the Company for the benefit of any other Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Authorized Officer and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at Hackensack, New Jersey.
"Corporation" means a corporation, association, company, joint
stock company, limited liability company or business trust.
"Default" means means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 802.
"Interest" with respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency other
than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"Event of Default" with respect to Securities of a particular
series has the meaning specified in Section 801.
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<PAGE> 10
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or State supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further,
that except as may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction other than a precautionary financing statement respecting a lease,
charter or similar arrangement not intended as a security agreement).
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
4
<PAGE> 11
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it and the Company that such
Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or (except or purposes of actions to
be taken by Holders generally under Section 812 or 813) all Outstanding
Securities of each such series and each such Tranche, as the case may
be, determined without regard to this clause (x)) shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Securities
which the Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor;
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
(z) the principal amount of any Security which is denominated
in a currency other than Dollars or in a composite currency that shall
be deemed to be Outstanding for
5
<PAGE> 12
such purposes shall be the amount of Dollars which could have been
purchased by the principal amount (or, in the case of a Discount
Security, the Dollar equivalent on the date determined as set forth
below of the amount determined as provided in (y) above) of such
currency or composite currency evidenced by such Security, in each such
case certified to the Trustee in an Officer's Certificate, based (i) on
the average of the mean of the buying and selling spot rates quoted by
three banks which are members of the New York Clearing House
Association selected by the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifth Business Day preceding any
such determination or (ii) if on such fifth Business Day it shall not
be possible or practicable to obtain such quotations from such three
banks, on such other quotations or alternative methods of determination
which shall be as consistent as practicable with the method set forth
in (i) above;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, limited liability partnership or
unincorporated organization or any Governmental Authority.
"Place of Payment", when used with respect to the Securities
of any series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
6
<PAGE> 13
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Restricted Investments" means all investments made in cash in
the common equity interests of Persons which are not primarily engaged in the
generation, distribution or sale of electric energy or natural gas or the
distribution or sale of water, or the furnishing of communications services, or
water treatment and analysis services, or in the treatment of wastewater.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear simple interest.
Any calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security shall be made without regard
to the effective interest cost to the Company of such Security and without
regard to the Stated Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's obligations are
evidenced or secured in whole or in part by such Security.
"Stated Maturity," when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
"Subsidiary" means, with respect to any Person, (a) any
corporation, public limited company or joint stock company of which more than
50% of the total voting power of shares of the capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof, and (b) any entity other than a corporation, public limited
company or joint stock company in which such Person or a Subsidiary of such
Person owns more than 50% of the total voting power of the capital stock of such
entity entitled (without regard to the occurrence of any contingency) to vote in
the election or selection of the governing body, partners, managers or others
that control the management and policies of such entity.
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<PAGE> 14
"Tranche" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount and/or
date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
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<PAGE> 15
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such Officer's Certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar
9
<PAGE> 16
tenor signed by such Holders in person or by an agent duly appointed in
writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders duly
called and held in accordance with the provisions of Article Thirteen,
or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the first proviso to the definition of "Outstanding") and
serial numbers of Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to
10
<PAGE> 17
conform, in the opinion of the Trustee and the Company, to such action
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
the record date shall be deemed to be Holders for the purposes of (i)
determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be
computed as of the record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section 104(e)).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with, the Trustee by any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and delivered personally to
an officer or other responsible employee of the addressee, or transmitted by
facsimile transmission, telex or other direct written electronic means to such
telephone number or other electronic communications address as the parties
hereto shall from time to time designate, or transmitted by registered mail,
charges prepaid, to the applicable address set opposite such party's name below
or to such other address as either party hereto may from time to time designate:
If to the Trustee, to:
Summit Bank
[________________]
[________________]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________]
If to the Company, to:
E'town Corporation.
600 South Avenue
Westfield, New Jersey 07091-0788
Attention: Gail Brady
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<PAGE> 18
Telephone: (908) 654-9122
Telecopy: (908) 232-2719
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
registered mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other provision shall control; and
if any provision hereof otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that Federal law or the law of any other jurisdiction shall be
mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in Securities of any series, or any Tranche
thereof, or in the Board Resolution or Officer's Certificate which establishes
the terms of the Securities of such series or Tranche, which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such Business Day.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by
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their execution of the Securities. If the form or forms of Securities of any
series are established in a Board Resolution or in an Officer's Certificate
pursuant to a Board Resolution, such Board Resolution and Officer's Certificate,
if any, shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form without coupons.
The definitive Securities shall be produced in such manner as shall be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to
the authentication, issuance and delivery of Securities of any series, there
shall be established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental indenture
or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306, 406
or 1206 and, except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
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(c) the Person or Persons (without specific identification) to
whom interest on Securities of such series, or any Tranche thereof,
shall be payable on any Interest Payment Date, if other than the
Persons in whose names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal of the Securities
of such series or any Tranche thereof, is payable or any formulary or
other method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside this Indenture or otherwise (without regard to
any provisions for redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the rate
or rates at which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate or rates
shall be determined, by reference to an index or other fact or event
ascertainable outside this Indenture or otherwise; the date or dates
from which such interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any Interest
Payment Date; and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Securities
of such series, or any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such series, or any Tranche
thereof, may be effected, (3) exchanges of Securities of such series,
or any Tranche thereof, may be effected and (4) notices and demands to
or upon the Company in respect of the Securities of such series, or any
Tranche thereof and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such series; and if such is
the case, and if acceptable to the Trustee, that the principal of such
Securities shall be payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Securities of such series, or any Tranche thereof, may
be redeemed, in whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Securities of
any series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other analogous mandatory
redemption provisions or at the option of a Holder thereof and the
period or periods within which or the date or dates on which, the price
or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to
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the requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest on the
Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder
thereof, in securities or other property, the type and amount of such
securities or other property, or the formulary or other method or other
means by which such amount shall be determined, and the period or
periods within which, and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such series,
or any Tranche thereof, may be determined with reference to an index or
other fact or event ascertainable outside this Indenture, the manner in
which such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to those
set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or exchanged
for shares of capital stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of
such series, or any Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction and
discharge thereof as provided in Section 701;
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(r) if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (i) any limitations on the rights of
the Holder or Holders of such Securities to transfer or exchange the
same or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of global form and
(iii) any and all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof,
are to be issuable as bearer securities, any and all matters incidental
thereto which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such term shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated by the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer and may have
the corporate seal of the Company affixed thereto or reproduced thereon attested
by any other Authorized Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the Company
shall bind the Company,
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notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery
of such Securities and, to the extent that the terms of such Securities
shall not have been established in an indenture supplemental hereto or
in a Board Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or (ii) in the
case of Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which such terms
are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to
oral or electronic instructions from the Company or any agent or agents
thereof, which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with the
instrument or instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect:
(i) that the form or forms of such Securities have
been duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly issued under
this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided
by this Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws
and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law);
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provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that in lieu of the opinions
described in clauses (ii) and (iii) above Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant to such
procedures (acceptable to the Trustee) as may be specified from time to
time by a Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly authorized by the
Company and will have been established in conformity with the
provisions of this Indenture; and
(y) such Securities, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order or
Orders or specified procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 201 and 301 and this Section,
as applicable, at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents have been
superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security shall
be dated the date of its authentication.
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Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee or its agent by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holder thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such Securities.
Upon such surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 602, with respect to the Securities of each
series, a register (the register kept in accordance with this Section being
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of
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<PAGE> 27
Securities of such series or any Tranche thereof and the registration of
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and such Person is referred
to herein, with respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate one of its
offices as the office in which the register with respect to the Securities of
one or more series shall be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such series. The Security
Register shall be open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or Tranche
at the office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the Holder,
for one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, no service charge
shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
govern mental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any series,
or any Tranche thereof, during a period of 15 days immediately preceding the
date notice is to be given identifying the serial
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numbers of the Securities of such series or Tranche called for redemption or (b)
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone
other than the Holder of such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
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Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a date (herein called a "Special Record Date") for
the payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall promptly cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at the
address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
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SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and the Security Registrar
shall promptly deliver a certificate of disposition to the Trustee and the
Company unless, by a Company Order, similarly delivered, the Company shall
direct that canceled Securities be returned to it. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security in accordance with
this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the Securities
of each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with respect
to such Securities as contemplated by Section 301, the obligation of the Company
to make any payment of the principal thereof, or the premium or interest
thereon, shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and payable. If
any such tender or recovery is in a currency other than the Required Currency,
the Trustee may take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full
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amount of Required Currency then due and payable, and in no circumstances shall
the Trustee be liable therefor except in the case of its negligence or willful
misconduct.
SECTION 312. CUSIP Numbers.
The Company in issuing Securities of any series shall use a
"CUSIP" number and the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to the Holders of the Securities of such
series; provided, that any such notice may state that no such representation is
made as to the correctness or accuracy of the CUSIP number printed in the notice
or in the Securities of such series, and that reliance may be placed only on the
other identification numbers printed on the Securities of such series.
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall be
selected by the Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as shall
be provided for any particular series, or, in the absence of any such provision,
by such method of random selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officer's Certificate, the Company shall
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have offered to purchase all or any principal amount of the Securities then
Outstanding of any series, or any Tranche thereof, and less than all of such
Securities as to which such offer was made shall have been tendered to the
Company for such purchase, the Security Registrar, if so directed by Company
Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular Securities to
be redeemed and the portion of the principal amount of any Security to
be redeemed in part;
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, unless it shall have been specified as contemplated by Section
301 with respect to such Securities that such surrender shall not be
required;
(f) that the redemption is for a sinking or other fund, if
such is the case; and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been
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paid in accordance with Section 701, such notice may state that such redemption
shall be conditional upon the receipt by the Paying Agent(s) for such
Securities, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if any, on
such Securities and that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall not be required to
redeem such Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the Paying
Agent(s) for the Securities otherwise to have been redeemed shall promptly
return to the Holders thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by the
Security Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount
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equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE V
SINKING FUNDS
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series, or any Tranche
thereof, except as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any series, or any
Tranche thereof, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 502. Each sinking fund payment shall
be applied to the redemption of Securities of the series or Tranche in respect
of which it was made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is to be made and
(b) may apply as a credit Securities of such series or Tranche which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of such mandatory sinking fund payment; provided, however,
that no Securities shall be applied in satisfaction of a mandatory sinking fund
payment if such Securities shall have been previously so applied. Securities so
applied shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for the Securities of any series, or any Tranche thereof, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
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(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such mandatory sinking fund
payment which is to be satisfied by delivering and crediting Securities
of such series or Tranche pursuant to Section 502 and stating the basis
for such credit and that such Securities have not previously been so
credited, and the Company shall also deliver to the Trustee any
Securities to be so delivered. If the Company fails to deliver such
Officer's Certificate, the next succeeding mandatory sinking fund
payment for such series or Tranche shall be made entirely in cash in
the amount of the mandatory sinking fund payment. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE VI
COVENANTS
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance with the
terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, where the registration of transfer or
exchange of such Securities may be effected and where notices and demands to or
upon the Company in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106. If at any
time the Company shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment of such Securities shall
be made, registration of transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
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The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more series,
or any Tranche thereof, for any or all of the foregoing purposes and may from
time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such Securities in accordance
with the requirements set forth above. The Company shall give prompt written
notice to the Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it shall,
on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and premium or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if any, on
such Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on such Securities in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any failure by the Company (or
any other obligor upon such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities; and
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(c) at any time during the continuance of any failure referred
to in the preceding paragraph (b), upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons entitled to
such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent and, if
so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall b released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any, or interest has become
due and payable shall be paid to the Company on Company Request, or, if then
held by the Company, shall be discharged from such trust; and, upon such payment
or discharge, the Holder of such Security shall, as an unsecured general
creditor and not as a Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and remaining unpaid, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such Holder that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as, in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and maintenance
of any of its properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business.
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SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than [November 15] in each year, commencing
[November 15, 1999], the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace or requirement
of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) any covenant or restriction
specified with respect to any series or tranche of the Securities, if before the
time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of all series and Tranches with
respect to which compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605, 608 or 609 or Article Eleven if
before the time for such compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this Indenture shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
SECTION 608. Liens.
The Company shall not directly or indirectly, create, incur,
assume or suffer to exist any Consensual Lien on or with respect to any of the
common stock of Elizabethtown Water Company, or any income or profits therefrom
or assign or convey any right to receive income or profits therefrom, unless
prior to, or contemporaneously therewith, all Securities issued under this
Indenture are secured equally and ratably with, or prior to, the obligation
secured by that Consensual Lien.
SECTION 609. Restricted Investments.
(a) Subject to Section 1101, the Company shall not, and shall
not permit any of its Subsidiaries to, declare, make or authorize any
Restricted Investment unless immediately after giving effect to such
action:
(i) the aggregate value of all Restricted Investments
of the Company and its Subsidiaries (valued immediately after
such action) would not exceed $50,000,000; and
(ii) no Default or Event of Default would exist.
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(b) Each Person which becomes a Subsidiary of the Company
after the date hereof will be deemed to have made, on the date such
Person becomes a Subsidiary of the Company, all Restricted Investments
of such Person in existence on such date.
ARTICLE VII
SATISFACTION AND DISCHARGE
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof shall
be deemed to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which shall
not contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, the principal of and the
interest on which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any, deposited
with or held by the Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be sufficient, to
pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Securities or portions thereof on or
prior to Maturity; provided, however, that in the case of the provision
for payment or redemption of less than all the Securities of any series
or Tranche, such Securities or portions thereof shall have been
selected by the Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have
been given by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further, that
the Company shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with
this Section shall be held in trust, as provided in Section
703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been
satisfied; and
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(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating
the Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request and
in reliance upon those documents required by clauses (x), (y) and (z) above,
acknowledge in writing that the Security or Securities or portions thereof with
respect to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z), if required, shall not have been delivered, such Securities or
portions thereof shall nevertheless be deemed to have been paid for all purposes
of this Indenture, and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants made in respect of
such Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharge prior to Maturity for
any other purpose, and the Holders of such Securities or portions thereof shall
continue to be entitled to look to the Company for payment of the indebtedness
represented thereby; and, upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Security or Securities, or any portion thereof,
as contemplated by this Section, the Company shall not deliver an Officer's
Certificate described in clause (z) unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(i) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities or portions thereof, shall assume the obligation (which
shall be absolute and unconditional) to irrevocably deposit with the
Trustee or Paying Agent such additional sums of money, if any, or
additional Eligible Obligations, if any, or any combination thereof, at
such time or times, as shall be necessary, together with the money
and/or Eligible Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become
due on such Securities or portions thereof; provided, however, that
such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery to
the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant of
nationally recognized standing, selected by the Trustee, showing the
calculation thereof; or
(ii) an Opinion of Counsel to the effect that the Holders of
such Securities or portions thereof will not recognize income, gain or
loss for United States Federal income
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tax purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to United
States Federal income tax on the same amounts, at the same times and in
the same manner as if such satisfaction and discharge had not been
effected.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Security Registrar
shall select such Securities, or portions of principal amount thereof, in the
manner specified by Section 403 for selection for redemption of less than all
the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in respect
of which the Company's indebtedness shall have been satisfied and discharged,
all as provided in this Section do not mature and are not to be redeemed within
the 60 day period commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304, 305,
306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915 and this
Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and discharge of
the Company's indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to remain Outstanding
and (b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 603.
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SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915 and this
Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the provisions
of Section 603; provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default any cash received from such
principal or interest payments on such Eligible Obligations, if not then needed
for such purpose, shall, to the extent practicable, be invested upon Company
Request and upon receipt of the documents referred to in clause (y) of Section
701 in Eligible Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such amounts as shall be
sufficient, together with any other moneys and the principal of and interest on
any other Eligible Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further, that, so long as
there shall not have occurred and be continuing an Event of Default, any moneys
held in accordance with this Section on the Maturity of all such Securities in
excess of the amount
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required to pay the principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907; and provided, further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant to this Section
shall be held until such Event of Default shall have been waived or cured.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one or more of the following events which has occurred
and is continuing:
(a) failure to pay interest, if any, on any Security of such series
within 60 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series when due and payable; or
(c) failure to perform or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in
the performance of which or breach of which is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder, unless the Trustee, or the
Trustee and the Holders of a principal amount of Securities of such series
not less than the principal amount of Securities the Holders of which gave
such notice, as the case may be, shall agree in writing to an extension of
such period prior to its expiration; provided, however, that the Trustee,
or the Trustee and the Holders of such principal amount of Securities of
such series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the Company
within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of (1)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
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any such decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of 90 consecutive
days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the authorization of such action by
the Board of Directors; or
(f) any other Event of Default specified with respect to Securities
of such series as contemplated by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon such declaration such principal amount
(or specified amount) shall become immediately due and payable; provided,
however, that if an Event of Default shall have occurred and be continuing with
respect to more than one series of Securities, the Trustee or the Holders of not
less than 33% in aggregate principal amount of the Outstanding Securities of all
such series, considered as one class, may make such declaration of acceleration,
and not the Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
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(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities; and
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Securities
of such series, other than the non-payment of the principal of Securities
of such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted by law, interest on
premium, if any, and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
shall have occurred and be continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 806. Application of Money Collected.
Any money collected by the Trustee with respect to a particular
series of Securities pursuant to this Article Eight shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect of which or for
the benefit of which such money shall have been collected and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
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First: To the payment of all amounts due the Trustee under Section
907;
Second: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium,
if any, and interest, if any, respectively; and
Third: To the payment of any surplus then remaining to the Company,
or to whomever may be lawfully entitled thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series in respect of which an
Event of Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of
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and premium, if any, and (subject to Section 307) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 306,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Eight or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
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(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the
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extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE IX
THE TRUSTEE
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the
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Holders of a majority in principal amount of the Outstanding
Securities of any one or more series, as provided herein, relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any Default hereunder with respect
to the Securities of any series to the Holders of Securities of such series in
the manner and to the extent required to do so by the Trust Indenture Act,
unless such Default shall have been cured or waived; provided, however, that in
the case of any Default of the character specified in Section 801(c), no such
notice to Holders shall be given until at least 75 days after the occurrence
thereof.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in
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respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal requirements) be
entitled to examine, during normal business hours, the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer of the Trustee
shall have actual knowledge of the Event of Default or (2) written notice
of such Event of Default shall have been given to the Trustee by the
Company, any other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correct ness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
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SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee shall be
under no liability for interest on or investment of any moneys received by it
hereunder except as expressly provided herein or otherwise agreed with, and for
the sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall:
(a) pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the
extent that any such expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and against, any
loss, liability or expense reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts
here under or the performance of its duties hereunder, including the costs
and expenses (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) of defending itself against any
claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such other than
Eligible Obligations and moneys held in trust under Section 703 (except as
otherwise provided in Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the negligence, wilful
misconduct or bad faith of any Trustee hereunder shall not affect the rights of
any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series.
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SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article Nine.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Nine shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 911 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated in clause (y) in subsection (d) of this
Section), with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements
of Section 911. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 911, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of time,
or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a successor
Trustee, effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this Section,
the successor Trustee shall be deemed to have been appointed by the
Company pursuant to subsection (e) of this Section and such appointment
shall be
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deemed to have been accepted as contemplated in Section 911, all as of
such date, and all other provisions of this Section and Section 911 shall
be applicable to such resignation, appointment and acceptance except to
the extent inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee, upon payment of
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all sums owed to it, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article Nine.
SECTION 912. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Nine,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
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SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least 33% in principal amount of the Securities then Outstanding,
the Company shall for such purpose join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to appoint, one
or more Persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such Person
or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Company does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this Section,
and, if an Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Company.
Upon the written request of the Trustee, the Company shall join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
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(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other such
trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof, which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or territory thereof or the
District of Columbia or the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its
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predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------
As Trustee
By
----------------------
As Authenticating Agent
By
----------------------
Authorized Officer
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. Lists of Holders.
Semiannually, not later than [May 15 and November 15] in each year,
commencing [May 15], 1999, and at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved
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by it, all to such extent, if any, and in such manner as shall be required by
the Trust Indenture Act; provided, however, that no such list need be furnished
so long as the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than [November 15] in each year, commencing [November 15],
1999, the Trustee shall transmit to the Holders and the Commission a report,
dated as of the next preceding [July 15], with respect to any events and other
matters described in Section 313(a) of the Trust Indenture Act, in such manner
and to the extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall file with the
Trustee (within 30 days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.
To the extent required by the Trust Indenture Act, the Company shall
file with the Trustee the following documents and reports within 30 days after
such documents or reports (or consolidated documents or reports containing such
documents or reports) are filed with the Commission:
(a) The Company's annual reports on Form 10-K;
(b) The Company's quarterly reports on Form 10-Q;
(c) The Company's current reports on Form 8-K; and
(d) Any other documents filed with the Commission which are filed
with or incorporated by reference in the foregoing reports, related to the
Company, and have not previously been filed with the Trustee.
To the extent that any of the foregoing documents or reports are
consolidated with similar documents or reports filed by an affiliate, the
Company may file such consolidated document or report with the Trustee in lieu
of the separate document or report.
ARTICLE XI
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a Person
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organized and existing under the laws of the United States, any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Default
or Event of Default (except in either case a Default or Event of Default
arising as a result of non-compliance with section 609, which provision
shall not have legal effect from and after any consolidation, merger,
conveyance, transfer or lease), shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, or other transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1101, the successor corporation formed by such consolidation or
into which the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities, all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of all Holders or for the benefit of the Holders of, or to
remain in effect only so
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long as there shall be Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or
any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of
the Holders of Securities of any series or Tranche Outstanding on the date
of such indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective with respect to
such series or Tranche only pursuant to the provisions of Section 1202
hereof or when no Security of such series or Tranche remains Outstanding;
or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system of registration for all,
or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to add
other provisions with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall
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not adversely affect the interests of the Holders of Securities of any
series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to effect or
evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or
the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required by
the Trust Indenture Act to be contained herein, this Indenture shall be
deemed to have been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof, or
reduce the amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section
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802, or change the coin or currency (or other property), in which any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity of any Security (or, in the case of redemption,
on or after the Redemption Date), without, in any such case, the consent
of the Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any Default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any Tranche
thereof (except to increase the percentages in principal amount referred
to in this Section or such other Sections or to provide that other
provisions of this Indenture cannot be modified or waived), without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof. A waiver by
a Holder of such Holder's right to consent under this Section shall be deemed to
be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
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SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
this Indenture shall be modified in accordance there with, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
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ARTICLE XIII
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine, or, with the approval of the Company, at
any other place. Notice of every such meeting, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) If the Trustee shall have been requested to call a meeting of
the Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, by the Company or by the Holders of 33% in aggregate
principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in such other
place as shall be determined or approved by the Company, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches
are present in person or by proxy and if representatives of the Company
and the Trustee are present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding Securities of such
series, or by such of them as are not present at the meeting in person or
by proxy, and by the Company and the Trustee.
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SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
one or more, or all, series, or any Tranche or Tranches thereof, a Person shall
be (a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled to
attend any meeting of Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore provided, considered as
one class, shall constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action is to be taken
at such meeting which this Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, shall constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series and Tranches, be dissolved.
In any other case the meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as provided in Section
1302(a) not less than 10 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
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Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting Rights
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities
with respect to which it was given unless and until specifically revoked
by the Holder or future Holder (except as provided in Section 104(g)), of
such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of
such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches
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represented at the meeting, considered as one class; and the meeting may
be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series and Tranches with
respect to which the meeting shall have been called, held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or
64
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agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
SECTION 1402. Counterparts.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
65
<PAGE> 72
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
[SEAL] E'TOWN CORPORATION.
By:
--------------------------------
ATTEST:
- ------------------------------
[SEAL] SUMMIT BANK, Trustee
By
--------------------------------
ATTEST:
- ------------------------------
<PAGE> 73
[NOTARIZATION PAGES]
<PAGE> 1
Exhibit 4(b)
[FORM OF FACE OF DEBT SECURITY]
E'TOWN CORPORATION
[Designation of the Security will be inserted here]
E'TOWN CORPORATION, a corporation duly organized and existing under
the laws of the State of New Jersey (herein referred to as the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_________________, or registered assigns, the principal sum of
____________________ Dollars on __________,____, and to pay interest on each
Interest Payment Date on said principal sum from _________,____ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, commencing __________, 199_ at the rate of __% per annum until the
principal hereof is paid or made available for payment. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the __________________ Business
Day next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in [__________], in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 2
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
E'TOWN CORPORATION
By:
-----------------------
ATTEST:
- --------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------------
as Trustee
By:
---------------------------
Authorized Officer
<PAGE> 3
[FORM OF REVERSE OF DEBT SECURITY]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November __, 1998, as amended (herein
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and Summit Bank, as Trustee (herein called the
Trustee, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture, including the Resolutions and
Officer's Certificate filed with the Trustee on ___________, 1998 creating the
series designated on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $75,000,000.
[REDEMPTION PROVISIONS, IF ANY, WILL BE INSERTED HERE]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Security upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to
<PAGE> 4
the Securities of this series, the Holders of not less than a majority in
aggregate principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of Securities of this series
at the time Outstanding a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 1
Exhibit 5
Opinion of Walter M. Braswell
October 20, 1998
E'town Corporation
600 South Avenue
Westfield, New Jersey 07090
Ladies and Gentlemen:
I have acted as counsel to E'town Corporation (the "Company") in
connection with the proposed issuance and sale of up to $75,000,000 aggregate
principal amount of Debt Securities (the "Debt Securities") of the Company to be
issued under an Indenture, to be dated as of November 1, 1998, between the
Company and Summit Bank (the "Indenture"). I have reviewed, among other things,
the registration statement on Form S-3, and the prospectus included therein,
being filed under the Securities Act of 1933 with respect to the Debt Securities
(the "Registration Statement"). I have also reviewed and am familiar with the
originals and copies, certified or otherwise identified to my satisfaction, of
pertinent documents, corporate records and other instruments relating to the
issuance of the Debt Securities and other actions and proceedings relating
thereto.
Based upon the foregoing and in reliance upon the opinion of
Winthrop, Stimson, Putnam & Roberts, special New York counsel to the Company,
insofar as matters of New York law are concerned, I am of the opinion that (i)
when the Registration Statement shall have become effective, (ii) when the Debt
Securities are issued in accordance with the authorizing resolutions of the
Board of Directors of the Company and in accordance with any applicable orders
of regulatory bodies, (iii) when maturity dates, interest rates and other
similar terms have been determined therefor, and (iv) when such Debt Securities
have been executed and authenticated as specified in the Indenture and delivered
against payment of the consideration therefor, such Debt Securities will be
valid and legally binding obligations of the Company.
I am admitted to the bar of the State of New Jersey and do not hold
myself out as an expert on the laws of any other jurisdiction. I hereby consent
to the filing of this opinion as an exhibit to the Registration Statement and to
the use of my name under the heading "Legality" in the prospectus included in
the Registration Statement. In giving this consent, I do not hereby admit that I
am within the category of persons whose consent is required under Section 7 of
the Securities Act or the rule and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/Walter M. Braswell
---------------------
Walter M. Braswell
Secretary
<PAGE> 1
Exhibit 12
E'TOWN CORPORATION
Computation of Ratio of Earnings to Fixed Charges
(In Thousands Except Ratios)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31, SIX MONTHS
ENDED
1993 1994 1995 1996 1997 JUNE 30, 1998
------- ------- ------- ------- ------- -------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS:
Net income $13,830 $12,088 $15,296 $15,073 $19,260 $ 9,325
Federal income taxes 7,960 6,908 8,753 8,361 10,895 5,149
Interest charges 11,923 11,187 11,698 13,316 17,340 8,534
------- ------- ------- ------- ------- -------
Earnings available to cover
fixed charges 33,713 30,183 35,747 36,750 47,495 23,008
------- ------- ------- ------- ------- -------
FIXED CHARGES:
Interest on long-term debt 12,374 11,611 11,696 13,800 14,807 8,033
Other interest 96 470 2,390 2,645 2,560 500
Amortization of debt discount -
net 259 354 358 395 411 217
------- ------- ------- ------- ------- -------
Total fixed charges 12,729 12,435 14,444 16,840 17,778 8,750
------- ------- ------- ------- ------- -------
Ratio of Earnings to Fixed Charges 2.65 2.43 2.47 2.18 2.67 2.63
======= ======= ======= ======= ======= =======
</TABLE>
Earnings to Fixed Charges represents the sum of Net Income, Dividends, Federal
income taxes and Interest Charges (which is reduced by Capitalized interest),
divided by Fixed Charges. Fixed Charges consist of interest on long and
short-term debt (which is not reduced by Capitalized interest) and Amortization
of debt discount.
<PAGE> 1
Exhibit 23(a)
AAPMS SEC 325.015
Consent
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of E'town Corporation on Form S-3 of our reports dated February 18, 1998,
except for Note 11, as to which the date is March 6, 1998, appearing in and
incorporated by reference in the Annual Report on Form 10-K of E'town
Corporation for the year ended December 31, 1997 and to the reference to us
under the heading "experts" in this Registration Statement.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
October 19, 1998
<PAGE> 1
Exhibit 24
E'town Corporation and each of the directors and/or officers of E'town
Corporation whose signatures appear below do hereby appoint Gail P. Brady as
its, his or her true and lawful attorneys-in-fact to execute on its, his or
her behalf and in any and all capacities a Registration Statement on Form S-3
to be filed pursuant to the Securities Act of 1933 in connection with the
registration of up to $75,000,000 aggregate principal amount of Debt
Securities of E'town Corporation, and any and all pre- and post-effective
amendments thereto and other documents relating thereto, and to file the same
with the Securities and Exchange Commission. Said attorney-in-fact shall
have power to act hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned have duly executed this
instrument as of the 17th day of September 1998.
/s/Andrew M. Chapman
/s/Thomas J. Cawley
/s/Anthony S. Cicatiello
/s/Edward A. Clerico
/s/Dennis Doll
/s/Anne Evans Estabrook
/s/James W. Hughes
/s/John Kean
/s/Robert W. Kean, III
/s/Barry T. Parker
/s/Hugh M. Pfaltz
/s/Chester A. Ring
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
-
(Name of Trustee)
SUMMIT BANK
(I.R.S. Employer Identification No.)
22-0834947
(Address of Principal Executive Offices)
210 Main Street
Hackensack, NJ
07601
(Name of Obligor)
E'Town Corporation
(State of Incorporation)
New Jersey
(I.R.S. Employer Identification No.)
22-2596330
(Address of Principal Executive Offices)
600 South Avenue
Westfield, NJ 07091-0788
<PAGE> 2
(Title of Indenture Securities)
Debt Securities
1. GENERAL INFORMATION
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH
IT IS SUBJECT:
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New Jersey Department of Banking Trenton, NJ
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes
2. AFFILIATIONS WITH OBLIGOR
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None (See Note on page 6)
3. VOTING SECURITIES OF THE TRUSTEE
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF
THE TRUSTEE: AS OF
Col. A Col. B
------ ------
Summit Bank Common Stock 34,590,561 shares
Summit Bank, Preferred Stock 120,000 shares
4. TRUSTEESHIPS UNDER OTHER INDENTURES
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
Not applicable - see answer to item 13
2
<PAGE> 3
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the nature
of each such connection.
Not applicable - see answer to item 13
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner, and
executive officer of the obligor:
Not applicable - see answer to item 13
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter:
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by
the Trustee:
Not applicable - see answer to item 13
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE
If the trustee owned beneficially or holding as collateral security for
obligations in default any securities or an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are owned or held by the trustee:
Not applicable - see answer to item 13
3
<PAGE> 4
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge
of the trustee (1) owns 10 percent or more of the voting stock of the
obligor or (2) is an affiliate, other than a subsidiary, of the obligor,
furnish the following information as to the voting securities of such
person:
Not applicable - see answer to item 13
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING
50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50 percent or more of the voting securities of the
obligor, furnish the following information as to each class of securities
of such person any of which are owned or held by the trustee:
Not applicable - see answer to item 13
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the indenture, sate
whether there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the nature of any
such default.
13. DEFAULTS BY THE OBLIGOR
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
4
<PAGE> 5
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the indenture, state
whether there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the nature of any
such default.
None
14. AFFILIATIONS WITH THE UNDERWRITERS
If any underwriter is an affiliate of the trustee, describe each such
affiliation
15. FOREIGN TRUSTEE
Identify the order or rule pursuant to which the trustee is authorized to
act as sole trustee under indenture qualified or to be qualified under the
Act.
Not applicable
16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY
1. *Copy of Articles of Association of the Trustee as now in effect.
2. No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3. No copy of the authorization of the trustee to exercise corporate
trust powers is furnished since this authorization is contained in
the Articles of Association of the Trustee.
4. *Copy of the existing By-Laws of the Trustee as now in effect.
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
7. A copy of the latest report of Condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
5
<PAGE> 6
*Exhibits thus designated have heretofore been filed with the Securities
and Exchange Commission, have not been amended since filing and are
incorporated herein by reference (see Exhibits TIA(i) and TIA(ii) File No.
285667)
6
<PAGE> 7
NOTE
The Trustee disclaims responsibility for the accuracy or completeness of
information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtained by it through reasonable investigation and
as to which information it has obtained from the obligor and has had to rely or
will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Summit Bank, a corporation organized and existing under the laws of the
State of New Jersey, has duly caused this Statement of Eligibility and
Qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Hackensack and State of New Jersey on the 9th day
of October, 1998.
SUMMIT BANK
By: /s/Jennifer J. Houle
Assistant Vice President
7
<PAGE> 8
CONSENT OF TRUSTEE
Summit Bank, as trustee (the "Trustee") under an indenture to be entered
into between itself and E'Town Corporation, hereby consents to Section 321(b) of
the Trust Indenture Act of 1939, as amended, to the furnishing by Federal State,
Territorial or District Authorities to the Securities and Exchange Commission of
all reports, records or other information relating thereto.
SUMMIT BANK
By:/s/Jennifer J. Houle
Assistant Vice President
Dated: October 9, 1998
8
<PAGE> 9
FDIC Certificate Number [ 550]
Consolidated Report of Income
for the period January 1, 1998 -- June 30, 1998
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE
BASIS IN THOUSANDS OF DOLLARS.
9
<PAGE> 10
Schedule RI - Income Statement
<TABLE>
<CAPTION>
1480
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate 427,491 1.a.(1)(a)
(b) Loans to depository institutions 2,158 1.a.(1)(b)
(c) Loans to finance agricultural production and
other loans to farmers 12 1.a.(1)(c)
(d) Commercial and industrial loans 189,815 1.a.(1)(d)
(e) Acceptances of other banks 0 1.a.(1)(e)
(f) Loans to individuals for household, family,
and other personal expenditures:
(1) Credit cards and related plans 10,109 1.a.(1)(f)(1)
(2) Other 27,303 1.a.(1)(f)(2)
(g) Loans to foreign governments and official
institutions 0 1.a.(1)(g)
(h) Obligations (other than securities and leases)
of states and political subdivisions in the U.S.:
(1) Taxable obligations 31 1.a.(1)(h)(1)
(2) Tax-exempt obligations 0 1.a.(1)(h)(2)
(i) All other loans in domestic offices 7,097 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement
subsidiaries, and IBFs 0 1.a.(2)
b. Income from lease financing receivables:
(1) Taxable leases 27,541 1.b.(1)
(2) Tax-exempt leases 12 1.b.(2)
c. Interest income on balances due from depository
institutions:/1
(1) In domestic offices 796 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries,
and IBFs 0 1.c.(2)
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency
obligations 224,355 1.d.(1)
(2) Securities issued by states and political
subdivisions in the U.S.:
(a) Taxable securities 0 1.d.(2)(a)
(b) Tax-exempt securities 4,748 1.d.(2)(b)
(3) Other domestic debt securities 37,063 1.d.(3)
(4) Foreign debt securities 693 1.d.(4)
(5) Equity securities (including investments in mutual
funds) 8,284 1.d.(5)
e. Interest income from trading assets 162 1.e.
</TABLE>
10
<PAGE> 11
<TABLE>
<S> <C> <C> <C>
f. Interest income on federal funds sold and securities
purchased under agreements to resell 7,602 1.f.
g. Total interest income (sum of items 1.a through 1.f) 975,272 1.g.
2. Interest expense: a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts,
and telephone and preauthorized transfer
accounts) 21,684 2.a.(1)(a)
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) 67,935 2.a.(1)(b)(1)
(2) Other savings deposits 24,149 2.a.(1)(b)(2)
(3) Time deposits of $100,000 or more 40,649 2.a.(1)(b)(3)
(4) Time deposits of less than $100,000 144,500 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge
and Agreement subsidiaries and IBFs 0 2.a.(2)
b. Expense of federal funds purchased and securities sold
under agreements to repurchase 72,281 2.b.
c. Interest on demand notes issued to the U.S. Treasury,
trading liabilities and other borrowed money 64,332 2.c.
d. Not applicable
e. Interest on subordinated notes and debentures 5,651 2.e.
f. Total interest expense (sum of items 2.a through 2.e) 441,181 2.f.
3. Net interest income (item 1.g. minus 2.f) 534,091 3.
4. Provisions:
a. Provision for credit losses 30,150 4.a.
b. Provision for allocated transfer risk 0 4.b.
5. Noninterest income:
a. Income from fiduciary activities 18,722 5.a.
b. Service charges on deposit accounts in domestic offices 56,980 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d) 1,532 5.c.
d.-e. Not applicable
f. Other noninterest income:
(1) Other fee income 48,862 5.f.(1)
(2) All other noninterest income* 19,290 5.f.(2)
g. Total noninterest income (sum of items 5.a through 5.f) 145,386 5.g.
6. a. Realized gains (losses) on held-to-maturity securities 0 6.a.
b. Realized gains (losses) on available-for-sale securities (1,030) 6.b.
7. Noninterest expense:
a. Salaries and employee benefits 145,756 7.a.
b. Expenses of premises and fixed assets (net of rental
income) (excluding salaries and employee benefits and
mortgage interest) 44,750 7.b.
c. Other noninterest expense* 160,920 7.c.
d. Total noninterest expense (sum of items 7.a through 7.c) 351,426 7.d.
</TABLE>
- ----------
FN/2 Describe on Schedule RI-E -- Explanations.
11
<PAGE> 12
<TABLE>
<S> <C> <C>
8. Income (loss) before income taxes and extraordinary items
and other adjustments (item 3 plus or minus items 4.a.,
4.b, 5.g, 6.a, 6.b and 7.d) 296,871 8.
9. Applicable income taxes (on item 8) 103,125 9.
10. Income (loss) before extraordinary items and other
adjustments (item 8 minus 9) 193,746 10.
11. Extraordinary items and other adjustments, net of income
taxes* 0 11.
12. Net income (loss) (sum of items 10 and 11) 193,746 12.
</TABLE>
- ----------
FN1/ Includes interest income on time certificates of deposit not held for
trading
FN/2 Describe on Schedule RI-E -- Explanations.
12
<PAGE> 13
FDIC Certificate Number [ 550]
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30,1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
13
<PAGE> 14
<TABLE>
<CAPTION>
ASSETS Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C>
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin /2 1,052,904 1.a.
b. Interest-bearing balances /3 34,278 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B,
column A) 4,781,615 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D) 4,043,183 2.b.
3. Federal funds sold and securities purchased under
agreements to resell 489,000 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 17,504,445 4.a.
b. LESS: Allowance for loan and lease losses 270,762 4.b.
c. LESS: Allocated transfer risk reserve 0 4.c.
d. Loans and leases, net or unearned income, allowance
and reserve (item 4.a minus 4.b and 4.c) 17,233,683 4.d.
5. Trading assets (from Schedule RC-D) 14 5.
6. Premises and fixed assets (including capitalized leases) 181,845 6.
7. Other real estate owned (form Schedule RC-M) 20,907 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 39,112 8.
9. Customers' liability to this bank on acceptances
outstanding 16,608 9.
10. Intangible assets (from Schedule RC-M) 177,257 10.
11. Other assets (from Schedule RC-F) 436,629 11.
12. Total assets (sum of items 1 through 11) 28,507,035 12.
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) 20,163,278 13.a.
(1) Noninterest-bearing /3 4,347,228 13.a.(1)
(2) Interest-bearing 15,816,050 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II) 0 13.b.
(1) Noninterest-bearing 0 13.b.(1)
(2) Interest-bearing 0 13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase 2,589,725 14.
15. a. Demand notes issued to the U.S. Treasury 239,088 15.a.
b. Trading liabilities (from Schedule RC-D) 0 15.b.
</TABLE>
14
<PAGE> 15
<TABLE>
<S> <C> <C>
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less 1,577,078 16.a.
b. With a remaining maturity of more than one year through
three years 569,291 16.b.
c. With a remaining maturity of more than three years 790,464 16.c.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 16,608 18.
19. Subordinated notes and debentures 140,713 19.
20. Other liabilities (from Schedule RC-G) 287,375 20.
21. Total liabilities (sum of items 13 through 20) 26,373,620 21.
22. Not applicable
EQUITY CAPITAL
23, Perpetual preferred stock and related surplus 6,000 23.
24. Common stock 172,953 24.
25. Surplus (exclude all surplus related to preferred stock) 649,242 25.
26. a. Undivided profits and capital reserves 1,296,757 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities 8,463 26.b.
27. Cumulative foreign currency translation adjustments 0 27.
28. Total equity capital (sum of items 23 through 27) 2,133,415 28.
29. Total liabilities and equity capital (sum of items 21
and 28). 28,507,035 29.
</TABLE>
- ----------
2/ Includes cash items in process of connection and unposted debits.
3/ Includes time certificates of deposit not held for trading.
15
<PAGE> 16
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1997
Number
N/A M.1.
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted 5 = Review of bank's financial statements by
in accordance with generally accepted external auditors
auditing standards by a certified public
accounting firm which submits a report on
the bank.
2 = Independent audit of the bank's parent 6 = Compilation of the bank's financial
holding company conducted in accordance with statements by external auditors
generally accepted auditing standards by a
certified public accounting firm which
submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank 7 = Other audit procedures (excluding tax
conducted in accordance with generally preparation work)
accepted auditing standards by a certified
public accounting firm (may be required by
state chartering authority)
4 = Directors' examination of the bank 8. = No external audit work
performed by other external auditors (may
be required by state chartering authority)
</TABLE>
16
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000764403
<NAME> E'TOWN CORPORATION
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 584,726
<OTHER-PROPERTY-AND-INVEST> 46,061
<TOTAL-CURRENT-ASSETS> 38,319
<TOTAL-DEFERRED-CHARGES> 39,138
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 708,244
<COMMON> 163,432
<CAPITAL-SURPLUS-PAID-IN> (3,845)
<RETAINED-EARNINGS> 46,539
<TOTAL-COMMON-STOCKHOLDERS-EQ> 206,126
0
12,000
<LONG-TERM-DEBT-NET> 255,211
<SHORT-TERM-NOTES> 34,000
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 30
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 200,877
<TOT-CAPITALIZATION-AND-LIAB> 708,244
<GROSS-OPERATING-REVENUE> 33,609
<INCOME-TAX-EXPENSE> 2,676
<OTHER-OPERATING-EXPENSES> 21,557
<TOTAL-OPERATING-EXPENSES> 24,233
<OPERATING-INCOME-LOSS> 9,376
<OTHER-INCOME-NET> 307
<INCOME-BEFORE-INTEREST-EXPEN> 9,683
<TOTAL-INTEREST-EXPENSE> 4,318
<NET-INCOME> 5,365
203
<EARNINGS-AVAILABLE-FOR-COMM> 5,162
<COMMON-STOCK-DIVIDENDS> 4,298
<TOTAL-INTEREST-ON-BONDS> 4,048
<CASH-FLOW-OPERATIONS> 17,022
<EPS-PRIMARY> .63
<EPS-DILUTED> .62<F1>
<FN>
<F1>All amounts in thousands of dollars except per share amounts.
</FN>
</TABLE>
