___________________________________________________________
ELIZABETHTOWN WATER COMPANY
TO
THE BANK OF NEW YORK, TRUSTEE
___________
INDENTURE
Dated as of November 1, 1993
______________
7-1/4% Debentures due 2028
__________________________________________________________
TABLE OF CONTENTS*
* This Table of Contents does not constitute any part of the Indenture and
is not to have any bearing upon the interpretation of any of its terms
or provisions.
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 1
Form of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with legal requirements . . . . . . . . . . . . . . . . . . 6
ARTICLE ONE.
Definitions.
SECTION 1.01 Certain terms; other terms defined in Trust
Indenture Act of 1939 or by reference therein
in Securities Act of 1933, as amended, to have
meanings therein assigned . . . . . . . . . . . . . . . . 6
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 7
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 7
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Debenture or Debentures . . . . . . . . . . . . . . . . . . . . 7
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Debentureholder . . . . . . . . . . . . . . . . . . . . . . . . 7
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 8
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 8
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Principal Corporate Trust Office . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO.
Description, Execution and Exchange of Debentures.
SECTION 2.01 Maturity of Debentures . . . . . . . . . . . . . . . . . . 9
SECTION 2.02 Form of Debentures . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.03 Date of Debentures and denominations . . . . . . . . . . . 9
SECTION 2.04 Execution and authentication of
Debentures . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.05 Exchange, registration and transfer
of Debentures . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06 Mutilated, destroyed, lost or stolen
Debentures . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07 Cancellation of surrendered
Debentures . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.08 Provisions of Indenture and
Debentures for sole benefit of
parties and Debentureholders . . . . . . . . . . . . . 12
SECTION 2.09 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE THREE.
Issue of Debentures.
SECTION 3.01 Amount, authentication and delivery of
Debentures . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE FOUR.
Redemption of Debentures.
SECTION 4.01. Redemption of Debentures . . . . . . . . . . . . . . . . . 14
SECTION 4.02. Redemption of part only of
Debentures . . . . . . . . . . . . . . . . . . . . . . . 14
Notice of intention to redeem . . . . . . . . . . . . . . 14
SECTION 4.03. When called Debentures become due
and payable . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.04. When interest ceases on called
Debentures . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE FIVE.
Particular Covenants of the Company.
SECTION 5.01. Payment of principal of and interest
on Debentures . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.02. Maintenance and designation of office
or agency for registration of
transfer, exchange and payment
of Debentures . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.03. Appointment to fill vacancy in office
of Trustee . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.04. Appointment of paying agent other
than Trustee . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.05. Company not to incur debt, with
certain exceptions . . . . . . . . . . . . . . . . . . . 17
Definition of "Property Additions" . . . . . . . . . . . . 19
SECTION 5.06. Company covenants it will not mortgage,
pledge or permit any other lien,
with certain exceptions, upon any
of its property now owned or here-
after acquired without securing the
Debentures . . . . . . . . . . . . . . . . . . . . . . . 21
Covenants of the Company in the event
of merger, consolidation or sale . . . . . . . . . . . . 21
Definition of "Excepted Property" . . . . . . . . . . . . 23
SECTION 5.07. Limitations on dividends . . . . . . . . . . . . . . . . . 24
SECTION 5.08. Special provision for retirement of
Debentures . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.09. Company to file Compliance Certificate
with Trustee annually . . . . . . . . . . . . . . . . . 26
ARTICLE SIX.
Debentureholders' Lists and Reports by the
Company and the Trustee.
SECTION 6.01. Company to furnish Trustee information
as to names and addresses of
Debentureholders . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE SEVEN.
Remedies of the Trustee and Debentureholders
on Event of Default.
SECTION 7.01. Events of Default defined . . . . . . . . . . . . . . . . 27
Acceleration of maturity upon
Event of Default . . . . . . . . . . . . . . . . . . . . 28
Waiver of default and rescission of
declaration of maturity . . . . . . . . . . . . . . . . 29
SECTION 7.02. Covenant of Company to pay to Trustee
whole amount due on Debentures on
default in payment of interest or
principal . . . . . . . . . . . . . . . . . . . . . . . 29
Trustee may remove judgment for whole
amount due on Debentures on failure
of Company to pay . . . . . . . . . . . . . . . . . . . 30
Filing of proof of claim by Trustee
in bankruptcy, reorganization,
receivership, or other judicial
proceedings . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.03. Application of moneys collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.04. Limitation on suits by holders of
Debentures . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.05. Delay or omission in exercise of
rights not waiver of default . . . . . . . . . . . . . . 33
SECTION 7.06. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.08. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE EIGHT.
Concerning the Trustee.
SECTION 8.01. Duties of Trustee prior to and after
Event of Default . . . . . . . . . . . . . . . . . . . . 33
SECTION 8.02. Except as otherwise provided in
Section 8.01:. . . . . . . . . . . . . . . . . . . . . . 33
(a) Trustee may rely on documents
believed genuine and properly
signed or presented . . . . . . . . . . . . . . . . 33
(b) Sufficient evidence by certain
instruments provided for . . . . . . . . . . . . . 33
(c) Trustee may act on Opinion of
Counsel . . . . . . . . . . . . . . . . . . . . . . 34
(d) Trustee may require indemnity from
Debentureholders . . . . . . . . . . . . . . . . . 34
(e) Trustee not liable for actions in
good faith believed to be
authorized . . . . . . . . . . . . . . . . . . . . 34
(f) Investigation of facts by Trustee . . . . . . . . . . 34
(g) Trustee may act through agents . . . . . . . . . . . 34
(h) Trustee not required to risk own
funds . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 8.03. Trustee not liable for recitals in
Indenture or in Debentures . . . . . . . . . . . . . . . 35
Trustee not accountable for use of
Debentures or proceeds . . . . . . . . . . . . . . . . . 35
SECTION 8.04. Trustee, paying agent or Debenture
registrar may own Debentures . . . . . . . . . . . . . . 35
SECTION 8.05. Moneys received by Trustee to be
held in trust . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.06. Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . . . . . . 35
Obligations to Trustee to be secured
by lien prior to Debentures . . . . . . . . . . . . . . 35
SECTION 8.07. Right of Trustee to rely on Officers'
Certificate where no other evidence
specifically prescribed . . . . . . . . . . . . . . . . 36
SECTION 8.08. Calculation of percentages of
securities . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.09. Requirements for eligibility of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.10. (a) Resignation of Trustee . . . . . . . . . . . . . . . 37
(b) Removal of Trustee by Company or
by court on Debentureholder's
application . . . . . . . . . . . . . . . . . . . . 37
(c) Removal of Trustee by holders of
majority in principal amount of
Debentures . . . . . . . . . . . . . . . . . . . . 38
(d) Time when resignation or removal
of Trustee effective . . . . . . . . . . . . . . . 38
SECTION 8.11. Acceptance by successor to Trustee . . . . . . . . . . . . 38
SECTION 8.12. Successor to Trustee by merger,
consolidation or succession to
business . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE NINE.
Concerning the Debentureholders.
SECTION 9.01. Evidence of action by Debenture-
holders . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.02. Proof of execution of instruments
and holding of Debentures . . . . . . . . . . . . . . . 40
SECTION 9.03. Who may be deemed owners of
Debentures . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.04. Debentures owned by Company or
controlled or controlling companies
disregarded for certain purposes . . . . . . . . . . . . 40
SECTION 9.05. Action by Debentureholders bind
future holders . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE TEN.
Debentureholders' Meetings.
SECTION 10.01 Purposes for which meetings may be
called . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.02. Manner of calling meetings . . . . . . . . . . . . . . . . 41
SECTION 10.03. Call of meetings by Company or
Debentureholders . . . . . . . . . . . . . . . . . . . . 42
SECTION 10.04. Who may attend and vote at meetings . . . . . . . . . . . 42
SECTION 10.05. Regulations may be made by Trustee . . . . . . . . . . . . 42
SECTION 10.06. Manner of voting at meetings and
record to be kept . . . . . . . . . . . . . . . . . . . 43
SECTION 10.07. Exercise of rights of Trustee or
Debentureholders may not be hindered
or delayed by call of meeting of
Debentureholders . . . . . . . . . . . . . . . . . . . . 44
ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01 Purposes for which supplemental
indentures may be entered into with-
out consent of Debentureholders . . . . . . . . . . . . 44
SECTION 11.02 Modification of Indenture with consent
of holders of more than 50% in
principal amount of Debentures . . . . . . . . . . . . . 45
SECTION 11.03. Effect of supplemental indentures . . . . . . . . . . . . 45
SECTION 11.04. Debentures may bear notation of
changes . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.05. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 46
ARTICLE TWELVE.
Consolidation, Merger and Sale.
SECTION 12.01. Consolidation or merger of Company
and sale or conveyances of property
of Company permitted . . . . . . . . . . . . . . . . . . 46
Assumption of obligations of Company
by successor company or transferee . . . . . . . . . . . 47
SECTION 12.02. Rights and duties of successor
corporation . . . . . . . . . . . . . . . . . . . . . . 47
Appropriate changes may be made in
phraseology and form of Debentures . . . . . . . . . . . 47
Company may consolidate or merge into
itself or acquire properties of
other corporations . . . . . . . . . . . . . . . . . . . 47
SECTION 12.03. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 47
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture;
Deposited Moneys.
SECTION 13.01. Satisfaction and discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 13.02 Application by Trustee of funds
deposited for payment of
Debentures . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.03. Repayment of moneys held by paying
agent . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.04. Payment of deposited money to
Company after lapse of time . . . . . . . . . . . . . . 49
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders,
Officers, Trustees and Directors.
SECTION 14.01. Incorporators, stockholders, officers,
trustees and directors of Company
exempt from individual liability . . . . . . . . . . . . 50
ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . . . . . . . 50
SECTION 15.02. Acts of board, committee or officer
of successor corporation valid . . . . . . . . . . . . . 51
SECTION 15.03. Surrender of powers by Company . . . . . . . . . . . . . . 51
SECTION 15.04. Required notices or demands may be
served by mail . . . . . . . . . . . . . . . . . . . . . 51
SECTION 15.05. Indenture and Debentures to be
construed in accordance with laws
of State of New York . . . . . . . . . . . . . . . . . . 51
SECTION 15.06. Officers' Certificate and Opinion
of Counsel to be furnished upon
applications or demands by Company . . . . . . . . . . . 51
SECTION 15.07. Payments due on Sundays or holidays . . . . . . . . . . . 52
SECTION 15.08. Provisions required by Trust
Indenture Act of 1939 to control . . . . . . . . . . . . 52
SECTION 15.09. Effect of invalidity of provisions . . . . . . . . . . . . 52
SECTION 15.10. Indenture may be executed in counter-
parts . . . . . . . . . . . . . . . . . . . . . . . . . 53
ACCEPTANCE OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
INDENTURE, dated as of November 1, 1993, between ELIZABETHTOWN
WATER COMPANY, a corporation duly organized and existing under and by virtue
of the laws of the State of New Jersey (hereinafter sometimes called the
"Company"), party of the first part, and THE BANK OF NEW YORK, a New York
banking corporation (hereinafter sometimes called the "Trustee"), party of
the second part.
WHEREAS, the Company is empowered to issue debentures for any of
the objects and purposes of the Company;
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized an issue of debentures designated 7-1/4% Debentures due 2028
(hereinafter referred to as the "Debentures"), in an aggregate principal
amount of $50,000,000, to be issued under and pursuant to the provisions
hereof; and
WHEREAS, the Debentures and the Trustee's certificate of
authentication to be borne by the Debentures are to be substantially in the
following forms, respectively:
[FORM OF DEBENTURE]
[FACE]
$___________________ No. _________
ELIZABETHTOWN WATER COMPANY
7-1/4% Debenture due 2028
ELIZABETHTOWN WATER COMPANY, a corporation duly organized and
existing under the laws of the State of New Jersey (herein referred to as the
"Company"), for value received, hereby promises to pay to
______________________, or registered assigns, on November 1, 2028 or upon
the earlier redemption hereof as hereinafter provided, the principal sum of
_________________ _______________________ Dollars in such coin or currency
of the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, and to pay interest
thereon at the rate per annum specified in the title of this Debenture, in
like coin or currency, semi-annually on May 1 and November 1 in each year,
until payment of said principal sum has been made or duly provided for, from
the most recent interest payment date to which interest has been paid or duly
provided for (unless the date hereof is the date to which interest on the
Debentures has been paid or duly provided for in which case from the date of
this Debenture) or if no interest has been paid or duly provided for on the
Debentures from November 1, 1993. Principal and interest shall be paid at
the principal corporate trust office of The Bank of New York, New York, New
York or at the office of the Company, Westfield, New Jersey, or at the duly
designated office of any duly appointed alternate or successor paying agent;
provided, however, that at the option of the Company interest on this
Debenture may be paid by check mailed to the registered holder thereof at
such holder's address as it shall appear on the register of the Company.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth at this
place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed
by the Trustee under the Indenture.
IN WITNESS WHEREOF, ELIZABETHTOWN WATER COMPANY has caused this
Debenture to be signed in its corporate name by its President or one of its
Vice Presidents by his signature or a facsimile thereof and by its Secretary
or one of its Assistant Secretaries by his signature or a facsimile thereof,
and its corporate seal, or a facsimile thereof, to be impressed or imprinted
hereon.
ELIZABETHTOWN WATER COMPANY
By___________________________
President.
By___________________________
Secretary.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated: _______________
This is one of the Debentures described in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
By_________________________________
Authorized Signatory.
[REVERSE]
ELIZABETHTOWN WATER COMPANY
7-1/4% Debenture due 2028
This Debenture is one of a duly authorized issue of Debentures of
the Company (herein referred to as the "Debentures"), limited to the
aggregate principal amount of $50,000,000, except as otherwise provided in
the Indenture referred to below, all issued or to be issued under and
pursuant to an indenture dated as of November 1, 1993 (herein referred to as
the "Indenture"), duly executed and delivered by the Company to The Bank of
New York, Trustee (herein referred to as the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights of the holders of the Debentures, the rights,
duties and immunities of the Trustee and the rights and obligations of the
Company thereunder.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of more than 50% in the aggregate
principal amount of the Debentures at the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any indenture supplemental thereto or modifying in any
manner the rights and obligations of the holders of the Debentures and of the
Company; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debenture, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest
thereon, without the consent of the holder of each Debenture so affected, or
(ii) reduce the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture, without the consent
of the holders of all Debentures then outstanding. It is also provided in
the Indenture that prior to any declaration of the maturity of the Debentures
the holders of a majority in the aggregate principal amount of the Debentures
at the time outstanding may on behalf of the holders of all of the Debentures
waive any past default under the Indenture and its consequences, except a
default in the payment of interest on or the principal of any of the
Debentures. Any such consent or waiver by the registered holder of this
Debenture shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof, irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the
coin or currency herein prescribed.
The Debentures are issuable as registered Debentures without
coupons, in denominations of $1,000 and any multiple thereof. This Debenture
is transferable in the manner authorized by law. Upon due presentment of
this Debenture for registration of transfer at the office or agency to be
maintained by the Company in the Borough of Manhattan, City and State of New
York, a new Debenture or Debentures, of authorized denominations, for a like
aggregate principal amount, will be issued to the transferee as provided, and
subject to the limitations, in the Indenture. No service charge will be made
for any such registration of transfer, but the Company may require payment of
a sum sufficient to reimburse it for any tax or other governmental charge
that may be imposed in relation thereto. This Debenture may in like manner
be exchanged without service charge for one or more new Debentures of other
authorized denominations but of the same aggregate principal amount, all
subject to the terms and conditions set forth in the Indenture.
As more fully provided in the Indenture, the Debentures are not
redeemable at the option of the Company prior to November 1, 1998.
Thereafter, the Debentures are redeemable at the option of the Company in
whole at any time, or in part from time to time, prior to maturity, by the
payment of the principal amount thereof and accrued interest to the date
fixed for redemption, together with a premium equal to a percentage of the
principal amount thereof determined as set forth in the tabulation below
under the heading "Redemption Premium":
Redemption Period
(12-month period ending Redemption
October 31st of the year stated) Premium
-------------------------------- ----------
1999 . . . . . . . . . . 5.44%
2000 . . . . . . . . . . 5.08
2001 . . . . . . . . . . 4.72
2002 . . . . . . . . . . 4.35
2003 . . . . . . . . . . 3.99
2004 . . . . . . . . . . 3.63
2005 . . . . . . . . . . 3.27
2006 . . . . . . . . . . 2.90
2007 . . . . . . . . . . 2.54
2008 . . . . . . . . . . 2.18
2009 . . . . . . . . . . 1.82
2010 . . . . . . . . . . 1.45
2011 . . . . . . . . . . 1.09
2012 . . . . . . . . . . 0.73
2013 . . . . . . . . . . 0.37
and without premium if redeemed on or after November 1, 2013.
The Indenture provides that the Debentures may be redeemed in
certain circumstances through the use of Proceeds of Released Property at a
special redemption price equal to the principal amount thereof and accrued
interest to the date fixed for redemption; provided, however, that none of
the Debentures shall be so redeemed prior to November 1, 1998.
The Indenture provides that under the circumstances specified
therein funds or certain securities may be deposited with the Trustee in
advance of the maturity or redemption date of any of the Debentures, in trust
for the payment or redemption of such Debentures, and the interest due or to
become due thereon, and that thereupon all obligations of the Company in
respect of such Debentures shall cease and be discharged and the holders
thereof shall thereafter be restricted exclusively to such funds or
securities for any and all other claims on their part under the Indenture or
with respect to such Debentures.
The Company, the Trustee, any paying agent and any Debenture
registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon) for the purpose of
receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Debenture registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer, trustee
or director, past, present or future, as such, of the Company or of any
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law or equity, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released by every holder hereof, as more fully provided in the Indenture.
______________________
AND WHEREAS, all acts and things necessary to make the Debentures,
when executed by the Company and authenticated and delivered by the Trustee
as in this Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid indenture and
agreement, have been done and performed, and the execution of this Indenture
and the issue hereunder of the Debentures have in all respects been duly
authorized, and the Company, in the exercise of the legal right and power in
it vested, executes this Indenture and proposes to make, execute, issue and
deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the
Debentures by the holders thereof and of the sum of one dollar to it duly
paid by the Trustee at the execution of these presents, the receipt whereof
is hereby acknowledged, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective holders from time to
time of the Debentures, as follows:
ARTICLE ONE.
Definitions.
Section 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture which are defined in the
Trust Indenture Act of 1939 or which are by reference in such act defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of the execution of this Indenture.
"Board of Directors" shall mean the Board of Directors of the
Company or any committee thereof duly authorized by the Board of Directors to
act hereunder.
"Board Resolution" or "Resolution of the Board of Directors" shall
mean 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.
"Company" shall mean Elizabethtown Water Company, and, subject to
the provisions of Article Twelve, shall also include its successors and
assigns.
"Debenture" or "Debentures" shall mean any Debenture or Debentures,
as the case may be, authenticated and delivered under this Indenture.
The term "outstanding", when used with reference to Debentures,
shall, subject to the provisions of Section 9.04 and Article Thirteen, mean,
as of any particular time, all Debentures authenticated and delivered by the
Trustee under this Indenture, except
(a) Debentures theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Debentures or portions thereof for the payment or redemption
of which moneys in the necessary amount shall have been deposited in
trust with the Trustee, provided that if such Debentures or portions are
to be redeemed prior to the maturity thereof, notice of such redemption
shall have been given as in Article Four provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Debentures which have been paid pursuant to Section 2.06 or in
lieu of or in substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.06,
unless proof satisfactory to the Trustee is presented that any such
Debentures are held by holders for value without notice of any defense.
"Debentureholder", "holder of Debentures", "holder", or other
similar terms, shall mean the registered holder of any Debenture. The term
"registered holder" shall mean the person or persons in whose name or names a
particular Debenture shall be registered on the register kept for that
purpose in accordance with the terms of this Indenture.
"Event of Default" shall mean any event specified in Section 7.01
continued for the period of time, if any, therein designated.
"Indenture" shall mean this instrument as originally executed, or,
if amended or supplemented, as so amended or supplemented.
"Officers' Certificate" shall mean a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the Company. Each such
certificate shall include the statements provided for in Section 15.06, if
and to the extent required by the provisions thereof.
"Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel who shall be satisfactory to the Trustee, and who may be an
employee of or counsel to the Company. Each such opinion shall include the
statements provided for in Section 15.06, if and to the extent required by
the provisions thereof.
"Person" shall mean an individual, partnership, corporation,
association, joint venture, trust or unincorporated association and shall
include a government or political subdivision thereof and any governmental
agency or public benefit corporation.
"Principal Corporate Trust Office" means the office of the Trustee
in New York, New York at which any particular time its corporate trust
business shall be principally administered, which office at the date hereof
is located at 101 Barclay Street, 21st Floor, New York, New York 10286,
Attention: Corporate Trust Trustee Administration, except that, with respect
to presentation of Securities for payment or registration of transfers and
exchanges and the location of the Security Registrar, such term means the
office or agency of the Trustee in said city at which at any particular time
its corporate agency business shall be conducted, which at the date hereof is
located at 101 Barclay Street, New York, New York 10286, Attention:
Corporate Trust Services Window.
"Responsible Officer" when used with respect to the Trustee shall
mean the chairman or vice chairman of the board of directors, the chairman of
the executive committee, the president, any vice president, the secretary,
the treasurer, any senior trust officer, any trust officer, any second or
assistant vice president, any assistant secretary, any assistant treasurer,
any assistant cashier, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Trustee" shall mean the Trustee under this Indenture for the time
being, whether original or successor.
"Trust Indenture Act of 1939", subject to the provisions of
Sections 11.01 and 11.02, shall mean the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture.
Certain other terms are defined in Articles Two, Five, Seven and
Eight.
ARTICLE TWO.
Description, Execution and Exchange of Debentures.
Section 2.01. The Debentures shall mature on November 1, 2028.
Section 2.02. The Debentures and the Trustee's certificate of
authentication to be borne by the Debentures shall be substantially of the
tenor and purport as in this Indenture above recited, and may have such
letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any law or regulation of any stock
exchange on which the Debentures may be listed, or to conform to usage.
Section 2.03. The Debentures shall be issuable as registered
Debentures without coupons in denominations of $1,000 and multiples thereof.
Each Debenture shall be dated the date of its authentication and
shall bear interest, payable semi-annually on May 1 and November 1 of each
year from the most recent interest payment date to which interest has been
paid or duly provided for (unless the date of such Debenture is the date to
which interest on the Debentures has been paid or duly provided for, in which
case from the date of such Debenture), or, if no interest has been paid or
duly provided for on the Debentures, from November 1, 1993.
The persons in whose names Debentures are registered at the close
of business on the record date with respect to a semi-annual interest payment
date shall be entitled to receive the interest payable on such interest
payment date notwithstanding the cancellation of any Debenture upon any
registration of transfer or exchange thereof subsequent to such record and
prior to such interest payment date; provided, however, that if and to the
extent the Company shall default in the payment of the interest due on such
interest payment date, such defaulted interest shall be paid to the persons
in whose names the Debentures are registered at the close of business on the
day preceding the date such defaulted interest is paid, unless a record date
shall be fixed by the Company for the payment of such defaulted interest by
notice given by mail by or on behalf of the Company to the holders of
Debentures not less than 15 days preceding such record date, which record
date shall not be more than 15 days before the date for such payment, then to
the persons in whose names outstanding Debentures are registered on such
record date. The term "record date" as used with respect to a semi-annual
interest payment date shall mean the close of business on April 15 or
October 15, as the case may be, next preceding such interest payment date, or
if such April 15 or October 15 is not a business day, the business day next
preceding such April 15 or October 15, the term "business day" meaning for
this purpose a day which in The City of New York is not a day on which
banking institutions are authorized by law to close.
Section 2.04. The Debentures shall be signed on behalf of the
Company by its President or a Vice President, and by its Secretary or an
Assistant Secretary, and its corporate seal, or a facsimile thereof, shall be
thereon impressed or imprinted. The signature of any such President, Vice
President, Secretary or Assistant Secretary may be facsimile. The Company
may use the signature or facsimile signature or any person who shall be any
such officer of the Company at the time of the execution of Debentures,
irrespective of the date as of which the same shall be authenticated, or of
any person who shall have been any such officer of the Company,
notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of, he shall have ceased to be such
officer of the Company.
The Company may deliver Debentures executed by the Company to the
Trustee for authentication. The Trustee shall thereupon authenticate and
make available for delivery said Debentures to or upon the written orders of
the Company. Only such Debentures as shall bear thereon a certificate of
authentication substantially in the form herein before recited, executed by
the Trustee, shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee upon any
Debenture executed by the Company shall be conclusive evidence that the
Debenture so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.
Section 2.05. The Company shall keep at the office or agency to be
maintained by the Company as provided in Section 5.02 a register or registers
in which, subject to such reasonable regulations as it may prescribe, it will
register all Debentures, and upon due presentment for registration or
transfer of any Debenture at such office or agency, the Company shall execute
and register and the Trustee shall authenticate and deliver in the name of
the transferee or transferees a new Debenture or Debentures for a like
aggregate principal amount of Debentures of any authorized denominations,
bearing numbers not contemporaneously outstanding.
The several authorized denominations of Debentures shall be
interchangeable in equal aggregate principal amounts. Debentures to be
exchanged shall be surrendered at the office or agency to be maintained by
the Company for the purpose as provided in Section 5.02 and the Company shall
execute and register and the Trustee shall authenticate and deliver in
exchange therefor the Debenture or Debentures which the Debenture holder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
All Debentures presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by, the registered holder or his attorney duly
authorized in writing.
For any exchange or registration of transfer of Debentures, the
Company, at its option, may require the payment of a sum sufficient to
reimburse it for any tax or other governmental charge that may be imposed in
relation thereto. No service shall be made for any such transaction.
The Company shall not be required to make registration of transfers
or exchanges of Debentures for a period of fifteen days next preceding any
selection of Debentures to be redeemed, nor shall it be required to make
registration of transfers or exchange of any Debentures or portions thereof
called or being called for redemption, except, in the case of any Debenture
to be redeemed in part only, the portion thereof not being redeemed.
Section 2.06. In case any Debenture shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may issue a new
Debenture of like tenor bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Debenture or in lieu of and
substitution for the Debenture so destroyed, lost or stolen. In every case
the applicant for a substituted Debenture shall furnish to the Company and to
the Trustee such security or indemnity as may be required by them to save
each of them, and, if requested, any paying agents and Debenture registrars
of the Company, harmless from all risk, however remote, and the applicant
shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the mutilation, destruction, loss or theft of the applicant's
Debenture and of the ownership thereof. The Trustee shall authenticate any
such substituted Debenture and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issue of any
substituted Debenture, the Company may require the payment of a sum
sufficient to cover any stamp tax or other governmental charge that may be
imposed incident thereto and any other expenses, including counsel fees and
expenses, of the Company, the Trustee and any paying agent or Debenture
registrar, connected therewith. In case any Debenture which has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Debenture, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debenture) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as may be required by
them to save each of them harmless, and evidence to the satisfaction of the
Company and the Trustee of the mutilation, destruction, loss or theft of such
Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section
in substitution for any Debenture which is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Debenture shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debentures duly
issued hereunder. All Debentures shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures and
shall preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereinafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.07. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall be delivered
to the Trustee and canceled by it, and no Debentures shall be issued in lieu
of any thereof except as expressly required or permitted by any of the
provisions of this Indenture. With the consent of the Company, the Trustee
may, but shall not be required to, destroy canceled Debentures and deliver a
certificate thereof to the Company. If the Company shall acquire any of the
Debentures, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and
until the same are delivered to the Trustee, or surrendered to the Trustee,
for cancellation.
Section 2.08. Nothing in this Indenture or in the Debentures,
expressed or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and the holders of the
Debentures, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained, all of the covenants, conditions and provisions herein being for
the sole benefit of the parties hereto and of the holders of the Debentures.
Section 2.09. The Company in issuing the Debentures may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to holders of
Debentures; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Debentures or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Debentures, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE THREE.
Issue of Debentures.
Section 3.01. Debentures not to exceed the aggregate principal
amount of $50,000,000, except as provided in Section 2.06, may, upon the
execution of this Indenture or from time to time thereafter, be executed by
the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company signed by its President or a Vice President and
by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, without further action by the Company.
The Debentures are to be issued initially under a book-entry only
system and, except as hereinafter provided, registered in the name of The
Depository Trust Company, New York, New York ("DTC") or its nominee, which
shall be considered to be the holder of all of the Debentures for all
purposes of the Indenture, including, without limitation, payment by the
Company of principal of and interest on such Debentures and receipt of
notices and exercise of rights of holders of such Debentures. There shall be
a single global security which shall be immobilized in the custody of DTC
with the owners of book-entry interests in the Debentures ("Book-Entry
Interests") having no right to receive Debentures in the form of physical
securities or certificates. Ownership of Book-Entry Interests shall be shown
by book-entry on the system maintained and operated by DTC, its participants
(the "Participants") and certain persons acting through the Participants.
Transfers of ownership of Book-Entry Interests are to be made only by DTC and
the Participants by that book-entry system, the Company and the Trustee
having no responsibility therefor so long as the Debentures are registered in
the name of DTC or its nominee. DTC is to maintain records of the positions
of Participants in the Debentures, and the Participants and persons acting
through Participants are to maintain records of the purchasers and owners of
Book-Entry Interests. If DTC or its nominee determines not to continue to
act as a depository for the Debentures in connection with a book-entry only
system, another depository, if available, may act instead and the single
global security will be transferred into the name of such other depository or
its nominee, in which case the above provisions will continue to apply but to
the new depository. If the book-entry only system for the Debentures is
discontinued by the Company for any reason, upon surrender and cancellation
of the single global security registered in the name of the then depository
or its nominee, new registered Debentures will be issued in authorized
denominations to the holders of Book-Entry Interests in principal amounts
coinciding with the amounts of such Book-Entry Interests shown on the book-
entry system immediately prior to the discontinuance thereof. Neither the
Trustee nor the Company shall be responsible for the accuracy of the
interests shown on that system.
ARTICLE FOUR.
Redemption of Debentures.
Section 4.01. The Debentures are not redeemable for any purpose
prior to November 1, 1998. Thereafter, the Debentures are redeemable prior
to maturity, in accordance with the provisions of this Article Four, at the
principal amount thereof and accrued interest to the date fixed for
redemption (but if the date fixed for redemption is a semi-annual interest
payment date, the interest installment payable on such date shall be paid to
the holder at the close of business on the record date for such interest
payment date), together, in certain cases, with a premium, as set forth in
the form of Debenture provided for herein. The Trustee, upon the request of
the Company (evidenced by a copy of a Board Resolution, delivered to the
Trustee at least 60 days prior to the redemption date), shall, for and on
behalf of and in the name of the Company, mail or cause to be mailed a notice
of redemption with respect to the principal amount of Debentures specified in
such request.
Section 4.02. In case of a redemption of a part only of the
Debentures, the Trustee shall select the particular Debentures or parts
thereof, which shall be $1,000 or multiples thereof, so to be redeemed
according to such method as the Trustee shall deem proper in its discretion.
Notice of redemption to the holder of any Debenture which is to be
redeemed in whole or in part shall be mailed by or on behalf of the Company,
not less than 30 days prior to the date fixed for redemption, to him at his
last address appearing upon the registry books.
Failure duly to give such notice by mailing to the holder of any
Debenture designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debenture.
The notice of redemption to each holder of Debentures to be
redeemed shall specify the Debentures or parts thereof held by such holder to
be redeemed, which shall be $1,000 or multiples thereof, the date fixed for
redemption, the CUSIP numbers (if any) of such Debentures, the redemption
price at which Debentures are to be redeemed and the place where payment of
the redemption price is to be made upon surrender of the Debentures, and
shall state that interest accrued to the date fixed for redemption will be
paid in the manner specified in said notice, that from said date interest
thereon will cease to accrue, and, in the case of any Debenture which is to
be redeemed in part only, that on and after the redemption date, upon
surrender of such Debenture, a new Debenture or Debentures of authorized
denominations in aggregate principal amount equal to the unremedied portion
of such Debenture will be issued. Such notice shall also state that it is
subject to the receipt of the redemption moneys by the Trustee prior to the
date fixed for redemption, and that such notice, and the Company's request to
the Trustee to mail such notice, shall be of no effect unless such moneys are
received prior to such date.
Section 4.03. Notice of redemption having been mailed, and the
Trustee having prior to the date fixed for redemption specified in the notice
of redemption received for the purpose an amount in cash sufficient to redeem
all of the Debentures called for redemption, the Debentures called for
redemption shall become due and payable on such date fixed for redemption.
Section 4.04. On and after the date fixed for redemption, if the
moneys for the redemption of the Debentures to be redeemed shall have been
received by the Trustee, such Debentures shall cease to bear interest. All
moneys on deposit with the Trustee for the redemption of Debentures shall,
subject to the provisions of Section 13.04 hereof, be held in trust for
account of the holders of the Debentures so to be redeemed, and shall be paid
to them, respectively, upon presentation and surrender of said Debentures.
If any Debenture of a denomination larger than $1,000 shall be
called for redemption in part only, upon presentation of any such Debenture
so called for redemption, the payment with respect to said Debenture shall be
made and Debentures for the unpaid balance of the principal amount of the
Debenture so presented shall be authenticated and delivered by the Trustee
without charge therefor to the holder thereof. On and after the date fixed
for such redemption, interest shall be payable only on the portion of such
Debenture not so called for redemption and only such portion shall be deemed
outstanding and continue to be entitled to the benefits of this Indenture.
Anything in this Indenture contained to the contrary
notwithstanding, if the giving of the notice of redemption shall have been
completed as provided in Section 4.02, or if provision satisfactory to the
Trustee for the giving of such notice shall have been made, and if the
Company shall have deposited in trust with the Trustee funds sufficient to
redeem the Debentures (or parts thereof) to be redeemed on the date fixed for
redemption, together with interest accrued to the date fixed for redemption,
then all obligations of the Company in respect of such Debentures (or parts
thereof) shall cease and be discharged and the holders of such Debentures or
parts thereof) shall thereafter be restricted exclusively to such funds for
any and all claims of whatsoever nature on their part under this Indenture or
in respect to such Debentures (or parts thereof).
ARTICLE FIVE.
Particular Covenants of the Company.
The Company covenants as follows:
Section 5.01. The Company will duly and punctually pay or cause to
be paid the principal of and interest on each of the Debentures at the time
and place and in the manner provided herein and in the Debentures.
Section 5.02. As long as any of the Debentures remain outstanding,
the Company will maintain an office or agency or offices or agencies in the
Borough of Manhattan, City and State of New York, where the Debentures may be
presented for registration of transfer and exchange as in this Indenture
provided, and where notices and demands to or upon the Company in respect of
the Debentures or of this Indenture may be served, and where the Debentures
may be presented for payment. Until otherwise designated by the Company in a
notice to the Trustee, such office or agency for all of the above purposes
shall be the principal corporate trust office of the Trustee in the Borough
of Manhattan, City and State of New York.
Section 5.03. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 8.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section 5.04. (a) If the Company shall appoint a paying agent
other than the Trustee, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest on the
Debentures (whether such sums have been paid to it by the Company or by
any other obligor on the Debentures) in trust for the benefit of the
holders of the Debentures, or of the Trustee, as the case may be,
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debentures) to make any payment
of the principal of or interest on the Debentures when the same shall be
due and payable, and
(3) that at any time during the continuance of any Event of
Default upon the written request of the Trustee, it will forthwith pay
to the Trustee all sums so held by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of, premium, if any, or interest on,
the Debentures, set aside, segregate and hold in trust for the benefit of the
holders of the Debentures, a sum sufficient to pay such principal, premium,
if any, or interest so becoming due and payable and will notify the Trustee
of any failure (by it or any other obligor on the Debentures) to take such
action.
(c) Whenever the Company shall have one or more paying agents, it
will, prior to each due date of the principal of, premium, if any, or
interest on, the Debentures, deposit with a paying agent a sum sufficient to
pay the principal, premium, if any, or interest, so becoming due, such sum to
be held in trust for the benefit of the persons entitled to such principal,
premium, if any, or interest, and (unless such paying agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to
act.
(d) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder,
as required by this Section, such sums to be held by the Trustee upon the
trusts herein contained.
(e) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 13.04 hereof.
Section 5.05. The Company covenants that, so long as any
Debentures shall be outstanding under this Indenture, it will not create,
assume or incur, or in any other manner become directly or indirectly liable
in respect of, any indebtedness, in addition to its 8 5/8% Debentures due
2007, its 10 1/8% Debentures due 2018, its 7.20% Debentures due 2019, its
7 1/2% Debentures due 2020, its 6.60% Debentures due 2021, its 6.70%
Debentures due 2021, its 8 3/4% Debentures due 2021, its 8% Debentures due
2022 and the Debentures, except the following:
(a) current operating liabilities and current or other obligations
(other than for borrowed money) incurred in the ordinary course of
business;
(b) Current Indebtedness;
(c) indebtedness (in addition to that referred to in subdivisions
(a) and (b) above and (d) below) in an aggregate amount not in excess of
$10,000,000 at any one time outstanding; and
(d) indebtedness (in addition to that referred to in subdivisions
(a), (b) and (c) above) in an aggregate amount not in excess of the sum
of $20,000,000 plus 65% of the Amount of Net Property Additions at the
time the Company first becomes liable in respect of any such
indebtedness.
The Company covenants that, so long as any Debentures shall be
outstanding under this Indenture, it will not create, assume or incur, or in
any manner become directly or indirectly liable in respect of, any
indebtedness (in addition to its 8 5/8% Debentures due 2007, its 10 1/8%
Debentures due 2018, its 7.20% Debentures due 2019, its 7 1/2% Debentures due
2020, its 6.60% Debentures due 2021, its 6.70% Debentures due 2021, its 8
3/4% Debentures due 2021, its 8% Debentures due 2022, the Debentures and that
referred to in subdivisions (a), (b) and (c) above), unless the Gross Income
of the Company, for a period of 12 consecutive calendar months within the 15
calendar months immediately preceding the incurring by the Company of such
indebtedness, shall have been at least equal to twice the Annual Interest
Charges.
The term "Current Indebtedness" as used herein shall mean
indebtedness in an aggregate amount not in excess of 20% of the total
capitalization of the Company at the time and which is expressed to be
payable on demand or to mature less than one year after the date of creation
or issuance thereof. The total capitalization of the Company shall be deemed
to consist of the sum of (i) the principal amount of all outstanding
indebtedness of the Company represented by bonds, debentures, notes or other
evidences of indebtedness (other than Current Indebtedness), (ii) the
aggregate of the par or stated value represented by all issued and
outstanding capital stock of all classes of the Company, including premiums
received on the issue of such capital stock, and (iii) the surplus of the
Company, including earned, capital, paid-in and other surplus.
The term "Amount of Net Property Additions" as used herein shall
mean the balance, if any, remaining after deducting the Retirements from the
Amount of Property Additions, as of any particular time.
The term "Amount of Property Additions" as used herein shall mean
the Cost or, if less, the fair value to the Company at the time of the actual
acquisition by the Company, of Property Additions.
The term "Property Additions" as used herein shall mean all
tangible property owned by the Company and made, constructed or otherwise
acquired by it subsequent to December 31, 1975, which the Company is
authorized to acquire, own and operate and which is used or useful in the
business of impounding, storing, transmitting, producing, manufacturing,
transporting, distribution or supplying water for any and all purposes.
Permanent improvements, extensions, additions or replacements in the process
or construction or erection, shall be included as Property Additions as of
any particular time, insofar as actually constructed or erected after
December 31, 1975, and before such particular time. There shall not be
included as Property Additions (a) Excepted Property, (b) going value or good
will, as such, (c) any item of property retired the retirement of which has
not been credited to utility plant account, (d) any item of property acquired
to replace a similar item of property whose retirement has not been credited
to utility plant account, or any item of property whose cost has been charged
or is properly chargeable to repairs, maintenance or other operating expense
account or whose cost has been charged or is not properly chargeable to
utility plant account, or (e) any property not located in the State of New
Jersey or in a State contiguous thereto.
The term "Retirements" as used herein shall mean the Cost of
Fundable Property which, subsequent to December 31, 1975, shall have become
worn out or permanently unserviceable, or shall have been lost, sold,
destroyed, abandoned, surrendered on lapse of title, taken by eminent domain,
purchased by any governmental or public body pursuant to any right reserved
to or vested in it, or otherwise disposed of by the Company or retired from
service for any reason, or shall have permanently ceased to be used or useful
in the business of the Company. Accounting adjustments of utility plant
accounts or reclassification of utility plant accounts or amortization of any
plant account to comply with any order of any regulatory body and which do
not represent or reflect the permanent retirement from a plant account
subsequent to December 31, 1975 of any Fundable Property shall not be
included in Retirements.
The term "Fundable Property" as used herein shall mean (a) all
property owned by the Company on December 31, 1975 (except such property as
would not be included in Property Additions if acquired subsequent to
December 31, 1975) and (b) Property Additions.
The term "Cost" as used herein, when used with respect to any
particular property, shall mean the cost (or, if not known, estimated cost)
thereof to the person first devoting it to public service, without deducting
therefrom applicable reserves for depreciation and/or retirements and/or
depletion and/or obsolescence. In determining Cost in cases in which
property, part of which constitutes Fundable Property and part does not, is
or has been acquired for a consideration not divided between such parts, or,
in cases where the consideration given for property is not allocated to the
various items of property acquired, the consideration may be allocated to the
various parts and items of property acquired in any reasonable manner which
is in accordance with the requirements of any systems of accounting with
which the Company is compelled to comply by any provision of law, or, if
there be no such requirements, in accordance with good accounting practice.
The term "Gross Income" as used herein shall mean gross operating
revenues from all sources (whether or not subject to refund) after deducting
therefrom operating expenses. In computing gross operating revenues, there
shall be included net non-operating revenues, if any (including income from
securities, whether of subsidiaries or not), in an amount not more than 20%
of Gross Income after deducting therefrom net non-operating revenues. In
computing operating expenses, there shall be included all operating expenses,
including accruals for taxes (except that taxes on undistributed earnings,
income and excess profits and any like taxes measured by income and charges
in lieu of any thereof made because of the deferment in payment of any such
tax shall be excluded from operating expenses, and any credit to income
subsequently made on account of any such prior charge shall be excluded from
gross operating revenues), rentals, insurance, actual charges for current
repairs and maintenance and charges to expense or income to provide for
depreciation, renewals, replacements, depletion or retirement of property and
for property loss (but excluding interest, charges deducted in computing net
non-operating revenues and charges to income for the amortization (i) of debt
discount and expense and (ii) of utility plant account or amounts transferred
therefrom). If any of the property owned by the Company at the time any
computation of Gross Income is made shall have been acquired during or after
any period for which Gross Income is to be computed, the Gross Income of such
property (computed in the manner in this Section provided for the computation
of the Gross Income of the Company) during such period or such part of such
period as shall have preceded the acquisition thereof, to the extent that the
same have not otherwise been included and can be determined, shall be
included in the Gross Income of the Company for all purposes of this
Indenture, and the Gross Income which can be determined of any property
disposed of by the Company during or after such period shall not be treated
as Gross Income of the Company.
The term "Annual Interest Charges" as used herein shall mean the
interest requirements for twelve months upon all indebtedness of the Company
(including any indebtedness, whether or not created or assumed by the
Company, on which the Company customarily pays interest charges or which is
secured by a lien on any property of the Company, but excluding (a)
indebtedness represented by customers' deposits, (b) current operating
liabilities and current or other obligations (other than for borrowed money)
incurred in the ordinary course of business, (c) indebtedness for the
purchase, payment or redemption of which money in the necessary amount shall
have been deposited in trust, and (d) Current Indebtedness) to be outstanding
upon the incurring by the Company of the indebtedness in connection with
which the computation is made.
Section 5.06. The Company covenants that, so long as any
Debentures shall be outstanding under the Indenture, it will not at any time
mortgage or pledge, or permit any other lien (other than Excepted
Encumbrances) to become a lien on, any property owned by the Company just
prior to such time, to secure any other indebtedness, without making
effective provision whereby the Debentures shall (so long as any such other
indebtedness shall be so secured) be secured (along with any other
indebtedness similarly entitled to be equally and ratably secured) by a
direct lien (on all the property, other than Excepted Property, owned by the
Company just prior to the time such other lien shall have become a lien on
any of the property of the Company) prior to the lien or liens securing any
and all such other indebtedness; provided, however, that this restriction
shall not be applicable to nor prevent
(a) the pledging by the Company of its assets as security for the
payment of any tax, assessment or other similar charge demanded of the
Company by any governmental authority or public body so long as the
Company in good faith contests its liability to pay the same, or as
security to be deposited with any governmental authority or public body
for any purpose at any time required by law or governmental regulation
as a condition to the transaction of any business or the exercise of any
privilege, license or right; or
(b) the pledging by the Company of any assets for the purpose of
securing a stay or discharge or for any other purpose in the course of
any legal proceeding in which the Company is a party; or
(c) making good faith deposits in connection with tenders,
contracts or leases to which the Company is a party.
The Company covenants that, so long as any Debentures shall be
outstanding under this Indenture, if, upon any consolidation or merger of the
Company with or into any other corporation, or upon any sale or conveyance of
all or substantially all of the property of the Company as an entirety, or
upon any acquisition by the Company of the property of another corporation
substantially as an entirety or upon any merger of any other corporation into
the Company, any of the property (other than Excepted Property) owned by the
Company just prior thereto, would thereupon become subject to any lien (other
than Excepted Encumbrances), the Company, prior to such consolidation,
merger, sale, conveyance or acquisition, will take appropriate action whereby
the Debentures shall (so long as such property shall be subject to such lien)
be secured (along with any other indebtedness similarly entitled to be
equally and ratably secured) by a direct lien on such portion of the property
of the Company prior to all other liens, other than Excepted Encumbrances and
other than any liens existing thereon just prior to such consolidation,
merger, sale, conveyance or acquisition.
Any instrument creating a lien pursuant to the requirements of this
Section shall contain reasonable and customary provisions for the enforcement
of such lien and for the release of, or substitution for, the property
subjected to such lien. Such direct lien shall be evidenced by an
appropriate instrument or instruments executed and delivered to the Trustee
(or to the extent legally necessary, to another trustee as additional or
separate trustee). The Trustee, subject to the provisions of Section 8.01
hereof, may receive an Opinion of Counsel as conclusive evidence that any
such instrument is in customary form and complies with the foregoing
provisions of this paragraph; and the Trustee shall not be under any duty or
responsibility to any holder of any Debenture with respect to the form,
validity or enforceability of any such instrument which it may accept in
reliance in good faith upon any such opinion.
If the Company shall fail to create a direct lien to secure the
Debentures, as required by the foregoing provisions of this Section, an
equitable lien shall exist to the same extent and on the same property as
though the Company had created such direct lien.
The term "Excepted Encumbrances" as used herein shall mean as of
any particular time any of the following:
(i) liens for taxes, assessments or governmental charges not
delinquent and liens for workmen's compensation awards and similar
obligations not delinquent and liens for taxes, assessments or
governmental charges delinquent but the validity of which is being
contested at the time by the Company in good faith by appropriate
proceedings diligently conducted;
(ii) any liens securing indebtedness neither assumed nor
guaranteed by the Company nor on which it customarily pays interest,
existing in or relating to real estate acquired by the Company for
transmission, distribution or right-of-way purposes, or in connection
with its usual operations;
(iii) easements or reservations in any property of the Company
created for the purpose of roads, railroads, railroadside tracks,
electric lines, pipe lines, sewers, water and gas transmission and
distribution mains, conduits, water rights of the State of New Jersey or
others, building and use restrictions and defects of title to, or leases
of, any parts of the property of the Company which do not in the opinion
of the Company's counsel materially impair the use of the property as an
entirety in the operation of the business of the Company;
(iv) undetermined liens and charges incidental to current
construction, including mechanics', laborers', materialmen's and similar
liens not delinquent;
(v) any obligations or duties affecting the property of the
Company to any municipality or public authority with respect to any
franchise, grant, license, permit or certificate;
(vi) rights reserved to or vested in any municipality or
public authority to control or regulate any property of the Company or
to use such property in a manner which does not materially impair the
use of such property for the purposes for which it is held by the
Company;
(vii) judgments in course of appeal or otherwise in contest and
secured by sufficient bond or security;
(viii) any irregularities in or deficiencies of title to any
rights of way for mains or pipes and/or appurtenances thereto or other
improvements thereon and to any real estate used or to be used primarily
for right of way purposes, provided that the Company shall have obtained
from the apparent owner of the lands or estates covered by any such
right of way an instrument purporting by its terms to grant the use
thereof for the construction, operation or maintenance of such main,
pipe, appurtenance or improvement for which the same are used or are to
be used, or provided that the Company has power, under eminent domain or
similar statutes, to remove such irregularities or deficiencies; or
(ix) any other lien on any property owned by the Company to
secure any indebtedness so long as the aggregate principal amount of all
such indebtedness is not in excess of $10,000,000.
The term "Excepted Property" as used herein shall mean (a) cash,
bonds, stocks, obligations and other securities; (b) choses in action,
accounts and bills receivable, judgments and other evidences of indebtedness
and contracts, leases and operating agreements; (c) stock in trade,
merchandise, equipment, apparatus, materials or supplies manufactured or
acquired for the purpose of sale and/or resale in the usual course of
business or consumable in the operation of any of the properties of the
Company or held for the purpose of repairing or replacing (in whole or in
part) any rolling stock, buses, motor coaches, trucks, automobiles or other
vehicles or aircraft; (d) timber, gas, oil, minerals (including developed and
undeveloped natural gas reserves and natural gas in underground storage or
otherwise), mineral rights and royalties; (e) materials or products
generated, manufactured, produced or purchased by the Company for sale,
distribution or use in the ordinary course of its business; (f) office
furniture and equipment, tools, rolling stock, buses, motor coaches, trucks,
automobiles and other vehicles and aircraft; and (g) the Company's franchise
to be a corporation.
Section 5.07. The Company covenants that, so long as any
Debentures shall be outstanding under this Indenture, it will not declare or
pay any dividends or make any other distribution (except dividends payable or
distributions made in shares of capital stock of the Company) on or in
respect of any of its Common Stock, or purchase or otherwise acquire for a
consideration any shares of its Common Stock (except out of the proceeds
derived from the sale of additional shares of its Common Stock subsequent to
August 31, 1992), if the aggregate of such dividends and distributions and
such consideration for purchase or other acquisition of shares of its Common
Stock made by the Company after December 31, 1975 would exceed the sum of (a)
the earned surplus of the Company accumulated after December 31, 1975 and
determined without any deduction on account of such dividends, distributions
or acquisitions and (b) $10,000,000. The term "consideration" as used in
this Section shall mean cash or fair value if the consideration be other than
cash. Charges to earned surplus with corresponding credits to utility plant
acquisition adjustment account or utility plant adjustment account or any
similar account or to any reserve for the purpose of ultimately disposing
thereof and any provisions for amortization of any amounts included in
utility plant acquisition account or utility plant adjustment account or in
any similar account shall be disregarded in determining earned surplus
accumulated after December 31, 1975.
Section 5.08. The Company covenants that, so long as any
Debentures shall be outstanding under this Indenture, if the Proceeds of
Released Property in any period of 12 consecutive calendar months shall
amount to $5,000,000 or more, and if, immediately subsequent to the receipt
of such $5,000,000 (or the part thereof making the total thereof $5,000,000
or more), the ratio of the aggregate principal amount of all outstanding
indebtedness of the Company represented by bonds, debentures, notes or other
evidences of indebtedness (other than Current Indebtedness) to the net book
value of the Company's utility plant accounts exceeds 60%, then the Company
will use such Proceeds of Released Property to redeem Debentures or to redeem
8 5/8% Debentures due 2007 issued by the Company (herein called the "8 5/8%
Debentures due 2007") or to redeem 10 1/8% Debentures due 2018 issued by the
Company (herein called the "10 1/8% Debentures due 2018") or to redeem 7.20%
Debentures due 2019 issued by the Company (herein called the "7.20%
Debentures due 2019") or to redeem 7 1/2% Debentures due 2020 issued by the
Company (herein called the "7 1/2% Debentures due 2020") or to redeem 6.60%
Debentures due 2021 issued by the Company (herein called the "6.60%
Debentures due 2021") or to redeem 6.70% Debentures due 2021 issued by the
Company (herein called the "6.70% Debentures due 2021") or to redeem 8 3/4%
Debentures due 2021 issued by the Company (herein called the "8 3/4%
Debentures due 2021") or to redeem 8% Debentures due 2022 issued by the
Company (herein called the "8% Debentures due 2022") or to redeem other
debentures issued by the Company under indentures having a provision
substantially similar to this Section 5.08 ("Subsequent Debentures") at the
earliest practicable date at a redemption price equal to the principal amount
thereof plus accrued interest to the date of redemption; provided, however,
that the Company shall not be required so to use any part of such Proceeds of
Released Property as to which the Company shall have given to the Trustee
(within 30 days after such receipt) an Officers' Certificate stating that the
Company intends, within a period of one year thereafter, to apply such part
to the making, constructing or otherwise acquiring of Property Additions. If
any such Officers' Certificate shall so state, the Company covenants so to
apply such part within such one year as stated in such Officers' Certificate
or, to the extent that it does not so apply such part, to use such part
within such one year to redeem Debentures or to redeem 8 5/8% Debentures due
2007 or to redeem 10 1/8% Debentures due 2018 or to redeem 7.20% Debentures
due 2019 or to redeem 7 1/2% Debentures due 2020 or to redeem 6.60%
Debentures due 2021 or to redeem 6.70% Debentures due 2021 or to redeem
8 3/4% Debentures due 2021 or to redeem 8% Debentures due 2022 or to redeem
Subsequent Debentures. Notwithstanding the foregoing, the Debentures may not
be redeemed with the Proceeds of Released Property prior to November 1, 1998.
In lieu of using any such Proceeds of Released Property for
redemption as aforesaid, the Company may deliver to the Trustee for
cancellation Debentures or may deliver for cancellation to the Trustee under
the indenture pursuant to which the 8 5/8% Debentures due 2007 were issued
8 5/8% Debentures due 2007, or may deliver for cancellation to the trustee
under the indenture pursuant to which the 10 1/8% Debentures due 2018 were
issued 10 1/8% Debentures due 2018, or may deliver for cancellation to the
trustee under the indenture pursuant to which the 7.20% Debentures due 2019
were issued 7.20% Debentures due 2019, or may deliver for cancellation to the
trustee under the indenture pursuant to which the 7 1/2% Debentures due 2020
were issued 7 1/2% Debentures due 2020, or may deliver for cancellation to
the trustee under the indenture pursuant to which the 6.60% Debentures due
2021 were issued 6.60% Debentures due 2021, or may deliver for cancellation
to the trustee under the indenture pursuant to which the 6.70% Debentures due
2021 were issued 6.70% Debentures due 2021, or may deliver for cancellation
to the trustee under the indenture pursuant to which the 8 3/4% Debentures
due 2021 were issued 8 3/4% Debentures due 2021 or may deliver for
cancellation to the trustee under the indenture pursuant to which the 8%
Debentures due 2022 were issued 8% Debentures due 2022 or may deliver for
cancellation to the trustee under the indenture pursuant to which any
Subsequent Debentures were issued such Subsequent Debentures, in each case
with all unmatured coupons, if any, appertaining thereto, theretofore
reacquired by the Company and not theretofore so delivered, and in any such
case the obligation of the Company to use such Proceeds of Released Property
for redemption shall be reduced to the extent of the aggregate principal
amount of Debentures or 8 5/8% Debentures due 2007 or 10 1/8% Debentures due
2018 or 7.20% Debentures due 2019 or 7 1/2% Debentures due 2020 or 6.60%
Debentures due 2021 or 6.70% Debentures due 2021 or 8 3/4% Debentures due
2021 or 8% Debentures due 2022 or Subsequent Debentures so delivered. All
Debentures so delivered to the Trustee shall be cancelled by the Trustee.
The term "Proceeds of Released Property" as used herein and in the
Debentures shall mean the aggregate amount of the consideration received or
to be received by the Company on the actual sale or other actual disposition
(subsequent to the execution of this Indenture) of any property included in
utility plant accounts (including therein an amount equivalent to any part of
such consideration consisting of other than cash at the fair value thereof to
the Company at the time of such sale or other disposition, as determined in
good faith by the Board of Directors of the Company, and excluding therefrom
an amount equivalent to any consideration received or to be received by the
Company on the sale or other disposition of any property (i) which property
shall have become worn out or permanently unserviceable and the book value of
which shall have been credited to utility plant accounts upon the retirement
thereof or (ii) to the extent that the consideration so received or to be
received shall constitute Property Additions) after deducting from such
amount, to the extent paid or payable by the Company, all expenses and all
taxes (including income taxes, if any) upon or in respect of any such sale or
other disposition.
Section 5.09. The Company will deliver to the Trustee within 120
days after the end of each fiscal year of the Company the Officers'
Certificate required by Section 314(a)(4) of the Trust Indenture Act. See
Section 314(a)(4) of the Trust Indenture Act.
ARTICLE SIX.
Debentureholders' Lists and Reports by
the Company and the Trustee.
Section 6.01. The Company shall deliver to the Trustee, semi-
annually, not more than 15 days after each record date, the information
required by Section 312(a) of the Trust Indenture Act. See Section 312 of
the Trust Indenture Act.
Section 6.02. See Section 312 of the Trust Indenture Act.
Section 6.03. See Section 314(a) of the Trust Indenture Act.
Section 6.04. On or before February 1 in each year beginning
January 1, 1994, so long as any Debentures are outstanding hereunder, the
Trustee shall transmit by mail to the Debentureholders the report, if any,
required by Section 313(a) of the Trust Indenture Act. See Trust Indenture
Act Sections 311(b) and 313.
ARTICLE SEVEN.
Remedies of the Trustee and
Debentureholders on Event of Default.
Section 7.01. In case one or more of the following Events of
Default shall have occurred and be continuing, that is to say:
(a) default in the due and punctual payment of any installment of
interest upon any of the Debentures as and when the same shall become
due and payable, and continuance of such default for a period of thirty
days; or
(b) default in the due and punctual payment of the principal of
any of the Debentures as and when the same shall become due and payable
either at maturity, by declaration as authorized by this Indenture, or
otherwise; or
(c) failure on the part of the Company duly to observe or perform
any other of the covenants, conditions or agreements on the part of the
Company in the Debentures or in this Indenture contained for a period of
sixty days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company
by the Trustee, or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Debentures at the time
outstanding; or
(d) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving a petition seeking reorganization of the Company
under Title 11, United States Code or any other similar applicable
Federal or State law, and such decree or order shall have continued
undischarged and unstayed for a period of sixty days; or a decree or
order of a court having jurisdiction in the premises for the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of all or substantially all of its
property, or for the winding up or liquidation of its affairs shall have
been entered, and such decree or order shall have remained in force
undischarged and unstayed for a period of sixty days; or
(e) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under Title 11, United States Code or any other
similar applicable Federal or State law, or shall consent to the filing
of any such petition, or shall consent to the appointment of a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of all or substantially all of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or
(f) an event of default, as defined in any indenture or trust
agreement securing or protecting any debt of the Company now or
hereafter outstanding aggregating more than $10,000,000, shall happen
and be then continuing and such debt shall be or become due and payable,
prior to the date on which the same would otherwise become due and
payable, provided that such acceleration shall not be rescinded or
annulled within ten days after written notice thereof to the Company
from the Trustee or to the Company and the Trustee from the holders of
not less than 25% in principal amount of the Debentures then outstanding
hereunder;
then and in each and every such case, so long as such Event of Default shall
not have been remedied, unless the principal of all the Debentures shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debentures then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given
by the Debentureholders), may declare the principal of all the Debentures
then outstanding to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due payable,
anything in this Indenture or in the said Debentures contained to the
contrary notwithstanding. This provision, however, is subject to the
condition that if, at any time after the principal of the Debentures shall
have been so declared due and payable, but before the Debentures shall have
become due by their terms and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the
Debentures then outstanding and the principal of any and all Debentures then
outstanding which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, upon overdue installments of interest,
at the rate per annum expressed in the Debentures to the date of such payment
or deposit) and the amount payable to the Trustee under Section 8.06, and any
and all defaults under the Indenture, other than the nonpayment of principal
on Debentures then outstanding which shall not have become due by their
terms, shall have been remedied or provisions shall have been made therefor
to the satisfaction of the Trustee -- then and in every such case the holders
of a majority in aggregate principal amount of the Debentures then
outstanding, by written notice to the Company and to the Trustee, may waive
all defaults and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken, subject to any applicable order or ruling in a court of competent
jurisdiction.
Section 7.02. The Company covenants that (1) in case default shall
be made in the payment of any installment of interest on any of the
Debentures, as and when the same shall become due and payable, and such
default shall have continued for a period of thirty days, or (2) in case
default shall be made in the payment of the principal of any of the
Debentures when the same shall have become due and payable, whether upon
maturity of the Debentures or upon declaration as authorized by this
Indenture or otherwise -- then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Debentures then
outstanding, the whole amount that then shall have become due and payable on
all such Debentures for principal or interest, as the case may be, with
interest upon the overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest at the rate per annum expressed in the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section
8.06.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other
obligor upon the Debentures and collect in the manner provided and to the
extent permitted by law out of the property of the Company or other obligor
upon the Debentures wherever situated the monies adjudged or decreed to be
payable.
The Trustee shall be entitled and empowered, either in its own name
or as trustee of an express trust, or as attorney-in-fact for the holders of
the Debentures, or in any one or more of such capacities, to file such proof
of debt, amendment of proof of debt, claim, petition or other document as may
be necessary or advisable in order to have the claims of the Trustee and of
the holders of the Debentures allowed in any equity receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or other judicial
proceedings relative to the Company or any other obligor on the Debentures or
their creditors, or affecting their property. The Trustee is hereby
irrevocably appointed (and the successive respective holders of the
Debentures by taking and holding the same shall be conclusively deemed to
have so appointed the Trustee) the true and lawful attorney-in-fact of the
respective holders of the Debentures, with authority to make and file in the
respective names of the holders of the Debentures or on behalf of the holders
of the Debentures as a class, subject to deduction from any such claims of
the amounts of any claims filed by any of the holders of the Debentures
themselves, any proof of debt, amendment of proof of debt, claim, petition or
other document in any such proceedings and to receive payment of any sums
becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things
for and on behalf of such holders of the Debentures as may be necessary or
advisable in the opinion of the Trustee in order to have the respective
claims of the Trustee and of the holders of the Debentures against the
Company or its property allowed in any such proceeding, and to receive
payment of or on account of such claims; provided, however, that nothing
contained in this Indenture shall be deemed to give to the Trustee any right
to accept or consent to any plan of reorganization or otherwise by action of
any character in any such proceeding to waive or change in any way any right
of any Debentureholder.
All rights of action and of asserting claims under this Indenture,
or under any of the Debentures, may be enforced by the Trustee without the
possession of any of the Debentures, or the production thereof on any trial
or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit
of the holders of the Debentures, subject to the provisions of this
Indenture.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Section 7.03. Any monies collected by the Trustee pursuant to
Section 7.02, shall be applied in the order following, at the date or dates
fixed by the Trustee, upon presentation of the several Debentures, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
First: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 8.06;
Second: In case the principal of the outstanding Debentures shall
not have become due and be unpaid, to the payment of interest on the
Debentures, in the order of the maturity of the installments of such
interest, with interest (so far as may be lawful and if such interest
has been collected by the Trustee) upon the overdue installments of
interest at the rate per annum expressed in the Debentures, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
Third: In case the principal of the outstanding Debentures shall
have become due, by declaration as authorized by this Indenture or
otherwise, to the payment of the whole amount then owing and unpaid upon
the Debentures for principal and interest, with interest on the overdue
principal and (so far as may be lawful and if such interest has been
collected by the Trustee) upon overdue installments of interest at the
rate per annum expressed in the Debentures; and in case such monies
shall be insufficient to pay in full the whole amount so due and unpaid
upon the Debentures, then to the payment of such principal and interest,
without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any
other installment of interest, or of any Debenture over any other
Debenture, ratably to the aggregate of such principal and accrued and
unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
Section 7.04. Except as otherwise expressly provided in this
Section, no holder of any Debenture shall have any right by virtue or by
availing of any provision in this Indenture or otherwise to institute any
suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture, for the appointment of a receiver or trustee, for the
execution of any trust or power hereof, or for any other remedy hereunder,
unless such holder previously shall have given to the Trustee written notice
of default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount of
the Debentures then outstanding shall have made written request upon the
Trustee either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee within a reasonable time (which in no
event shall be less than sixty days) after its receipt of such notice,
request and offer of indemnity, shall have failed to proceed to exercise such
powers or to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by the taker and
holder of every Debenture with every other taker and holder and the Trustee,
that no one or more holders of Debentures shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Debentures, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of
all holders of Debentures. For the protection and enforcement of the
provisions of this Section, each and every Debentureholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Nothing herein contained shall, however, affect or impair the
right, which is absolute and unconditional, of any Debentureholder to receive
and to institute suit to enforce the payment of the principal of and interest
on his Debentures at and after the respective due dates (including, subject
to the provisions of Section 7.01, maturity by declaration pursuant to this
Indenture or otherwise) of such principal or interest, or the obligation of
the Company, which is also absolute and unconditional, to pay the principal
of and interest on each of the Debentures to the respective holders thereof
at the times and places in the Debentures expressed.
Section 7.05. No delay or omission of the Trustee or of any holder
of any of the Debentures to exercise any right or power accruing upon any
Event of Default shall impair any such right or power or shall be construed
to be a waiver of any such default or an acquiescence therein; and, subject
to the provisions of Section 7.04, every power and remedy given by this
Article or by law to the Trustee or to the Debentureholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Debentureholders.
Section 7.06. See Section 316(a)(1) of the Trust Indenture Act.
Section 7.07. See Section 315(b) of the Trust Indenture Act.
Section 7.08. See Section 315(e) of the Trust Indenture Act.
ARTICLE EIGHT.
Concerning the Trustee.
Section 8.01. See Trust Indenture Act, including Section 315(a),
(b), (c) and (d) thereof.
Section 8.02. Except as otherwise provided in Section 8.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors, or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond, debenture or other paper or document, including without limitation
documents delivered to it pursuant to Section 5.10 (which documents the
Trustee may rely on as not being amended or supplemented other than to
the extent any amendments or supplements have been delivered to it)
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel of its selection and any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Debentureholders, pursuant to the
provisions of this Indenture, unless such Debentureholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby;
(e) The Trustee shall not be personally liable for any action
taken or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, approval, bond, debenture or other
paper or document unless requested in writing so to do by the holders of
not less than a majority in principal amount of the Debentures then
outstanding; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to
so proceeding. The reasonable expense of every such investigation shall
be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand;
(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 by it
hereunder; and
(h) None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any personal
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.
Section 8.03. The recitals contained herein and in the Debentures
(other than the certificate of authentication on the Debentures) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Debentures. The Trustee shall not be accountable for the use or application
by the Company of any of the Debentures or of the proceeds of such
Debentures, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture, or for the use or
application of any moneys received by any paying agent.
Section 8.04. The Trustee or any paying agent or any Debenture
registrar, in its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it were not
Trustee, paying agent or Debenture registrar.
Section 8.05. Subject to the provisions of Section 13.04, all
moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received
by it hereunder except such as it may agree in writing with the Company to
pay thereon. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time
to time upon the written order of the Company, signed by its President, a
Vice President, its Treasurer or an Assistant Treasurer.
Section 8.06. The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Company and the Trustee shall from time to time agree to
in writing (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for all services rendered
by it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claims, liability or expense incurred
without negligence or bad faith on the part of the Trustee, and arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of
liability in the premises. The obligations of the Company under this Section
to compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify the Trustee shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Debentures upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Debentures.
Section 8.07. Except as otherwise provided in Section 8.01,
whenever in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by an Officers'
Certificate, and such certificate shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 8.08. See Section 310(b) of the Trust Indenture Act. In
addition, excluded from the operation of Section 310(b)(1) of the Trust
Indenture Act are the following: the Indenture dated as of April 1, 1977
between the Company and Citibank, N.A., Trustee, pursuant to which the
Company's 8 5/8% Debentures due 2007 are outstanding, the Indenture dated as
of October 15, 1988 between the Company and Citibank, N.A., Trustee, pursuant
to which the Company's 10 1/8% Debentures due 2018 are outstanding, the
Indenture dated as of December 1, 1989 between the Company and Citibank,
N.A., Trustee, pursuant to which the Company's 7.20% Debentures due 2019 are
outstanding, the Indenture dated as of October 1, 1990 between the Company
and Citibank, N.A., Trustee, pursuant to which the Company's 7 1/2%
Debentures due 2020 are outstanding, the Indenture dated as of August 1, 1991
between the Company and The Bank of New York, Trustee, pursuant to which the
Company's 6.60% Debentures due 2021 are outstanding, the Indenture dated as
of August 1, 1991 between the Company and The Bank of New York, Trustee,
pursuant to which the Company's 6.70% Debentures due 2021 are outstanding,
the Indenture dated as of October 1, 1991 between the Company and The Bank of
New York, Trustee, pursuant to which the Company's 8 3/4% Debentures due 2021
are outstanding and the Indenture dated as of September 1, 1992 between the
Company and The Bank of New York, Trustee, pursuant to which the Company's 8%
Debentures due 2022 are outstanding.
Section 8.09. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States
or any State or Territory or of the District of Columbia authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $5,000,000, subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid 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. In case at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10.
Section 8.10. (a) The Trustee, or any successor hereafter
appointed, may at any time resign and be discharged from the trust hereby
created by mailing notice thereof to the Company and to the Debentureholders
whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with the provisions of Section 6.02(a) hereof.
Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted
appointment within thirty days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Debentureholder who has been a bona fide holder of a Debenture or Debentures
for at least six months may, subject to the provisions of Section 7.08, on
behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or by any Debentureholder who has been a bona fide holder
of a Debenture or Debentures for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Debentureholder, 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, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 7.08, any Debentureholder who has
been a bona fide holder of a Debenture or Debentures 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 and the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may at any time remove the Trustee and
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 8.11.
Section 8.11. Any successor trustee appointed as provided in
Section 8.10 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein. The predecessor trustee shall, nevertheless, at the
written request of the successor trustee, and upon payment of any amount then
due it pursuant to Section 8.06, pay over to the successor trustee all moneys
at the time held by it hereunder; and the Company and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and obligations. Any
Trustee ceasing to act shall nevertheless retain a lien on all funds held or
collected by such Trustee to secure any amount due it pursuant to Section
8.06.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall mail notice of the succession of such
trustee hereunder to all Debentureholders at their last addresses appearing
upon the register. If the Company fails to mail such notice in the
prescribed manner within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Company.
Section 8.12. Any corporation into which the Trustee may be merged
or with which it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be qualified under
the provisions of Section 8.08 and eligible under the provisions of Section
8.09, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Debentures shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee, and deliver
such Debentures so authenticated; and in case at that time any of the
Debentures shall not have been authenticated, any successor to the Trustee
may authenticate such Debentures either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Debentures
or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication
of any predecessor trustee or authenticate Debentures in the name of any
predecessor trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 8.13. See Section 311 of the Trust Indenture Act.
ARTICLE NINE.
Concerning the Debentureholders.
Section 9.01. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the
Debentures may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
Debentureholders in person or by attorney or proxy appointed in writing, or
(b) by the record of the holders of Debentures voting in favor thereof at any
meeting of Debentureholders duly called and held in accordance with the
provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Debentureholders.
Section 9.02. Subject to the provisions of Section 8.01, proof of
the execution of any instrument by a Debentureholder or his attorney or proxy
and proof of the holding by any person of any of the Debentures shall be
sufficient for any purpose of this Indenture if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The ownership of
Debentures shall be proved by the register of such Debentures or by a
certificate of the Debenture registrar.
The record of any Debentureholders' meeting shall be proved in the
manner provided in Section 10.06.
Section 9.03. The Company, the Trustee, any paying agent and any
Debenture registrar may deem and treat the person in whose name any Debenture
shall be registered upon the register as the absolute owner of such Debenture
(whether or not such Debenture shall be overdue and notwithstanding any
notice of ownership or writing thereon), for the purpose of receiving payment
of or on account of the principal of and interest and premium, if any, on
such Debenture and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debenture registrar shall be affected by
any notice to the contrary. All such payments so made to any such registered
holder, for the time being or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Debenture.
Section 9.04. In determining whether the holders of the requisite
aggregate principal amount of Debentures have concurred in any direction,
consent or waiver under this Indenture, Debentures which are owned by the
Company or any other obligor on the Debentures or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Debentures shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Debentures which the Trustee knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such
Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
Section 9.05. Any demand, request, waiver, consent or vote of the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Debenture. Any action
taken by the holders of the majority or percentage in aggregate principal
amount of the Debentures specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Debentures.
ARTICLE TEN.
Debentureholders' Meetings.
Section 10.01. A meeting of Debentureholders may be called at any
time and from time to time pursuant to the provisions of this Article Ten for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Debentureholders pursuant to any of the
provisions of Article Seven;
(2) to remove the Trustee and appoint a successor trustee pursuant
to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Debentures under any other provision of this Indenture, or authorized or
permitted by law.
Section 10.02. The Trustee may at any time call a meeting of
Debentureholders to take any action specified in Section 10.01, to be held at
such time and at such place in the Borough of Manhattan, City and State of
New York, as the Trustee shall determine. Notice of every meeting of the
Debentureholders, 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
mailed not less than fifteen days prior to the date fixed for the meeting to
the Debentureholders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with the provisions of
Section 6.02(a) hereof or obtained in accordance with the provisions of
Section 6.01 hereof.
Any meeting of Debentureholders shall be valid without notice if
the holders of all Debentures then outstanding are present in person or by
proxy or if notice is waived before or after the meeting by the holders of
all Debentures outstanding, and if the Company and the Trustee are either
present by duly authorized representatives or have, before or after the
meeting, waived notice.
Section 10.03. In case at any time the Company, pursuant to a
resolution of its Board of Directors or the holders of at least 20% in
aggregate principal amount of the Debentures then outstanding, shall request
the Trustee to call a meeting of Debentureholders to take any action
specified in Section 10.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting and the time and place
in the Borough of Manhattan, City and State of New York, for such meeting,
the Trustee shall mail notice of such meeting as provided in Section 10.02
within twenty days after receipt of such request.
Section 10.04. To be entitled to vote at any meeting of
Debentureholders a person shall (a) be a holder of one or more Debentures or
(b) be a person appointed by an instrument in writing as proxy for the holder
or holders of Debentures by a holder of one or more Debentures. The only
persons who shall be entitled to be present or to speak at any meeting of
Debentureholders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 10.05. Notwithstanding any other provision of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Debentureholders, in regard to proof of the
holding of Debentures 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 think fit.
Except as otherwise permitted or required by any such regulations, the
holding of Debentures shall be proved in the manner specified in Section 9.02
and the appointment of any proxy shall be proved in the manner specified in
Section 9.02. Pursuant to the foregoing authority the Trustee may fix, in
advance, a date as a record date for determining the Debentureholders
entitled to notice of, or to vote at, any meeting, such date to be not less
than fifteen nor more than forty-five days prior to the date fixed for such
meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by request
of the Company or Debentureholders as provided in Section 10.03, in which
case the Company or such Debentureholders, 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 holders of a
majority in principal amount of the Debentures represented at the meeting and
entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each
Debentureholder or proxy shall be entitled to one vote for each $1,000
principal amount of Debentures, provided, however, that no vote shall be cast
or counted at any meeting in respect of any Debentures 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 other than by virtue
of Debentures held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Debentureholders.
Any meeting of Debentureholders duly called pursuant to the provisions of
Section 10.02 or 10.03 may be adjourned from time to time, and the meeting
may be held as so adjourned without further notice.
Section 10.06. The vote upon any resolution submitted to any
meeting of Debentureholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Debentures or of their
representatives by proxy. 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 in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Debentureholders 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 person having knowledge of the facts, setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 10.02. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other 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 10.07. Nothing in this Article Ten contained shall be
deemed or construed to authorize or permit, by reason of any call of a
meeting of Debentureholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the
Debentureholders under any of the provisions of this Indenture or of the
Debentures.
ARTICLE ELEVEN.
Supplemental Indentures.
Section 11.01. The Company, when authorized by a resolution of its
Board of Directors, and the Trustee, subject to the conditions and
restrictions of this Indenture contained, may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as then in
effect) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Twelve;
(b) to add to the covenants and agreements of the Company in this
Indenture contained such further covenants and agreements thereafter to
be observed, and to surrender any right or power herein reserved to or
conferred upon the Company; and
(c) to cure any ambiguity, to correct or supplement any provisions
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action or other
provisions shall not adversely affect the interests of the holders of
Debentures in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 11.02.
Section 11.02. With the consent (evidenced as provided in Section
9.01) of the holders (or persons entitled to vote, or to give consents
respecting the same) of more than 50% in aggregate principal amount of the
Debentures at the time outstanding, the Company, when authorized by a
resolution of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as
then in effect) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights and
obligations of the holders of the Debentures and of the Company; provided,
however, that no such supplemental indenture shall (i) extend the fixed
maturity of any Debenture, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, without the
consent of the holder of each Debenture so affected, or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the
holders of all Debentures then outstanding.
Upon the request of the Company, accompanied by a copy of a
resolution of its Board of Directors certified by the secretary or an
assistant secretary of the Company authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Debentureholders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such supplemental
indenture.
It shall not be necessary for the consent of the Debentureholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to all Debentureholders at their last addresses
appearing upon the register. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 11.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 11.04. Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article, or after any action taken at a Debentureholders' meeting pursuant to
Article Ten, may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture or as to any action taken
at any such meeting; and, in such case, suitable notation may be made upon
outstanding Debentures after proper presentation and demand. If the Company
or the Trustee shall so determine, new Debentures so modified as to conform,
in the opinion of the Trustee and the Board of Directors of the Company, to
any modification of this Indenture contained in any such supplemental
indenture, or to any action taken at any such meeting, may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Debentures then outstanding, upon demand of, and without cost to, the holders
thereof, upon surrender of such Debentures.
Section 11.05. The Trustee, subject to the provisions of Section
8.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eleven is authorized
or permitted by the terms of this Indenture and that it is not inconsistent
therewith.
ARTICLE TWELVE.
Consolidation, Merger and Sale.
Section 12.01. Nothing contained in this Indenture or in any of
the Debentures shall prevent any consolidation or merger of the Company with
or into any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent any
sale or conveyance (or successive sales or conveyances) of the property and
assets of the Company (or of its successor or successors) as an entirety or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company) authorized to acquire the same; provided,
however, and the Company hereby covenants and agrees that, upon any such
consolidation, merger, sale or conveyance, the due and punctual payment of
the principal of and interest on all the Debentures, according to their
tenor, and the due and punctual performance and observance of all the terms,
covenants and conditions of this Indenture to be kept or performed by the
Company, shall be expressly assumed, by indenture supplemental hereto,
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the corporation formed by such consolidation, or into which the Company shall
have been merged, or by the corporation which shall have acquired such
property and assets. In the event of any such sale or conveyance the
predecessor Company may be dissolved, wound up and liquidated at any time
thereafter.
Section 12.02. In case of any such consolidation, merger, sale or
conveyance and upon the execution by the successor corporation of an
indenture supplemental hereto, as provided in Section 12.01, such successor
corporation shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part.
Such successor corporation thereupon may issue either in its own name or in
the name of the Company, with such suitable reference, if any, to such
consolidation, merger, sale or conveyance as may be required by the Trustee,
any or all of the Debentures issuable hereunder which theretofore shall not
have been issued by the Company and delivered to the Trustee; and, upon the
written order of such successor corporation, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debentures
which previously shall have been executed by the Company and any Debentures
which such successor corporation thereafter shall cause to be executed in
accordance with the provisions of this Indenture and delivered to the Trustee
for that purpose. All the Debentures so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate).
Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from consolidating with, or merging into itself, or
acquiring by purchase or otherwise all or any part of the property of, any
other corporation (whether or not affiliated with the Company).
Section 12.03. The Trustee, subject to the provisions of Section
8.01, may receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such assumption, complies
with the provisions of this Article.
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture; Deposited Moneys.
Section 13.01. If:
(1) Either (i) the Company shall deliver to the Trustee for
cancellation all Debentures (other than Debentures deemed not to be
outstanding under clause (c) of the definition thereof) not theretofore
canceled or delivered to the Trustee for cancellation, or (ii) the Company
shall have deposited in trust with the Trustee cash sufficient to pay at
maturity or upon redemption (after notice of redemption has been duly given
or provided for) all of the Debentures (other than Debentures deemed not to
be outstanding under clause (c) of the definition thereof) not theretofore
canceled or delivered to the Trustee for cancellation, including principal,
premium, if any, and interest due or to become due to such date of maturity
or redemption date, as the case may be, or (iii) the Company shall have
deposited in trust with the Trustee direct obligations of the United States
or obligations the principal of and interest on which are fully guaranteed by
the United States, and which are not subject to prepayment, redemption or
call prior to their stated maturity, in such amounts and maturing at such
times that the proceeds of said obligations, together with the income that
can be predetermined will accrue thereon by reference to the terms thereof
(without consideration of any reinvestment thereof), to be received upon
their respective maturities and interest payment dates will provide funds
sufficient to pay the principal, premium, if any, and interest due or to
become due to the date of maturity or to the redemption date, as the case may
be, with respect to all of the Debentures (other than Debentures deemed not
to be outstanding under clause (c) of the definition thereof) not theretofore
canceled or delivered to the Trustee for cancellation, provided that the
Trustee shall have been irrevocably instructed to apply the proceeds of said
obligations to the payment of such principal, premium and interest with
respect to such Debentures, or (iv) the Company shall have deposited in trust
with the Trustee any combination of cash or obligations referred to in (ii)
and (iii),
(2) the Company shall pay or cause to be paid all other sums
payable with respect to the Debentures, and
(3) the Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
the entire indebtedness on the Debentures have been complied with, then
(a) this Indenture shall cease to be of further effect (except as
otherwise provided herein) and on or after such maturity date or
redemption date, as the case may be, the Trustee, on demand of, and at
the expense of, the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture; and
(b) all obligations of the Company in respect of the Debentures
shall cease and be discharged and the holders of such Debentures shall
thereafter be restricted exclusively to such funds for any and all
claims of whatever nature on their part under this Indenture or with
respect to such Debentures; provided, however, that, in no event shall
the Company be discharged from (i) any payment obligation in respect of
Debentures deemed not to be outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations
under applicable law, (ii) any obligations under Sections 2.05 and 2.06
(except that Debentures issued upon registration of transfer or exchange
or in lieu of mutilated, lost, destroyed or stolen Debentures shall not
be deemed to be such obligations) or (iii) any obligations under
Sections 6.01, 8.06, 13.02, 13.03 and 13.04; further provided, however,
that the rights and privileges of the Trustee under this Indenture shall
survive any such discharge.
The Company hereby agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debentures, and without bad faith or
negligence.
Section 13.02. All moneys deposited with the Trustee pursuant to
Section 13.01 shall be held in trust and applied by it to the payment, to the
holders of the particular Debentures for the payment or redemption of which
such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest.
Section 13.03. In connection with the satisfaction and discharge
of this Indenture all moneys then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company or Trustee, be
paid to the Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys.
Section 13.04. In case the holder of any Debenture entitled to
payment hereunder at any time outstanding hereunder shall not, within two
years after the maturity date of such Debenture or the date fixed for the
redemption of any such Debenture, claim the amount on deposit with the
Trustee or other depositary for the payment of such Debenture, the Trustee or
other depositary shall pay over to or upon the written order of the Company
the amount so deposited, upon receipt of a request signed by the President or
a Vice President of the Company, and thereupon the Trustee or other
depositary shall be released from any and all further liability with respect
to the payment of such Debenture and the holder of said Debenture shall be
entitled (subject to any applicable statute of limitations) to look only to
the Company as an unsecured creditor for the payment thereof.
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders, Officers,
Trustees and Directors.
Section 14.01. No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Debenture, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, trustee or director, as such, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly through the Company or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule
of law or equity, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers, trustees or directors of the
Company, as such, or of any predecessor or successor corporation, or any of
them, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Debentures or implied therefrom; and that any and
all such liability is hereby expressly waived and released by every holder of
Debentures as a condition of, and as a consideration for, the execution of
this Indenture and the issue of such Debentures.
ARTICLE FIFTEEN.
Miscellaneous Provisions.
The provisions of the Trust Indenture Act which impose duties on
any person (including provisions automatically deemed included in an
indenture by the Trust Indenture Act unless the indenture provides that such
provisions are excluded which provision is hereby expressly excluded other
than Section 316(a)(2) of the Trust Indenture Act) are a part of and govern
this Indenture. If any provision hereof limits, qualifies or conflicts with
any of the duties imposed by operation of the Trust Indenture Act, the Trust
Indenture Act shall control.
Section 15.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
Section 15.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section 15.03. The Company by instruments in writing executed by
authority of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section 15.04. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Debentures to or on the Company may be given or served by
being deposited postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the Trustee), as
follows: Elizabethtown Water Company, 600 South Avenue, Westfield, NJ 07091-
0788. Any notice, election, request or demand by any Debentureholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at the principal corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York.
Section 15.05. This Indenture and each Debenture shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said state.
Section 15.06. Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' 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 have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that
the person making such certificate or opinion has read such covenant or
condition; (2) 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; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Company
may be based, in so far as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate, statement or opinion of counsel may be based
(in so far as it relates to factual matters information with respect to which
is in the possession of the Company) upon the certificate, statement or
opinion of or representations by an officer or officers of the Company,
unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company
or of counsel may be based, in so far as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm
of accountants in the employ of the Company, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Section 15.07. In any case where the date of maturity of interest
on or principal of the Debentures or the date fixed for redemption of any
Debenture shall be a Sunday or legal holiday or a date on which banking
institutions in the city of payment are authorized by law to close, then
payment of interest, principal or premium may be made on the next succeeding
day not a Sunday or a legal holiday or a date on which banking institutions
in the city of payment are authorized by law to close with the same force and
effect as if made on the nominal date and no interest shall accrue for the
period after such nominal date.
Section 15.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
Section 15.09. In case any one or more of the provisions contained
in this Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Indenture
or of such Debentures, but this Indenture and such Debentures shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 15.10. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
The Bank of New York, the party of the second part, hereby accepts
the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, Elizabethtown Water Company, the party of the
first part, has caused this Indenture to be signed in its corporate name and
acknowledged by its President, or one of its Vice Presidents, and its
corporate seal to be affixed hereunto, duly attested by its Secretary or an
Assistant Secretary; and The Bank of New York, the party of the second part,
has caused this Indenture to be signed and acknowledged by one of its
Assistant Vice Presidents, and its corporate seal to be affixed hereunto,
duly attested by one of its Assistant Treasurers, all as of the day and year
first above written.
ELIZABETHTOWN WATER COMPANY,
(Seal)
By /s/ Gail P. Brady
____________________________
Vice President
Attest:
/s/ Walter M. Braswell
_______________________
Secretary
THE BANK OF NEW YORK, as Trustee
(Seal)
By /s/ Robert F. McIntyre
______________________________
Assistant Vice President
Attest:
/s/ Lucille Firrincieli
_______________________
Assistant Treasurer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this 2nd day of November, 1993, before me, the subscriber, a
Notary Public within and for the County of New York, in the State of New
York, personally appeared Gail P. Brady, to me personally known, who, being
by me duly sworn, did say that she resides at 49 Howell Drive, Verona, N.J.
07044 and is a Vice President of Elizabethtown Water Company, one of the
corporations described in and which executed the foregoing instrument; that
she knows the corporate seal of the said corporation and that the seal
affixed to said instrument is the corporate seal of said corporation; and
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors and that she subscribed her name thereto
by like authority; and said Walter M. Braswell, acknowledged said instrument
to be the free act and deed of said corporation.
My commission as Notary Public as aforesaid expires
/s/ Jason D. Craven
_______________________________
Notary Public, State of
New York
No. 31-4989968
Qualified in New York County
Commission Expires
December 23, 1993
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this 9th day of November, 1993, before me, the subscriber, a
Notary Public within and for the County of New York, in the State of New
York, personally appeared Robert F. McIntyre, to me personally known,
who, being by me duly sworn, did say that he resides at
1108 Hudson St. Hoboken, N.J. 07030, and is an Assistant Vice President of The
Bank of New York, one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate seal of the said
corporation and that the seal affixed to said instrument is the corporate
seal of said corporation; and that said instrument was signed and sealed in
behalf of said corporation by authority of its Board of Directors and that he
subscribed his name thereto by like authority; and said
Lucille firrincieli acknowledged said instrument to be the free act and
deed of said corporation.
My commission as Notary Public as aforesaid expires
/s/ Marion Papadogonas
_______________________________
Notary Public, State of
New York
No. 31-4842989
Qualified in New York County
Commission Expires
May 31, 1995