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EXHIBIT 1
E'TOWN CORPORATION
$75,000,000
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
________, 1998
_____________, New Jersey
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Dear Sirs:
E'town Corporation, a New Jersey corporation (the "Company"), confirms
its agreement with each of you with respect to the issue and sale by the Company
of up to $75,000,000 aggregate principal amount of its Medium-Term Notes (the
"Notes").
The Company proposes to issue the Notes under its Indenture (the
"Indenture") dated as of ___________, 1998 to Summit Bank and its successors, if
any ("Summit"), as trustee (the "Indenture Trustee").
The Notes will be issued in minimum denominations of $______ and
integral multiples thereof (unless otherwise specified by the Company), will be
issued only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement or
supplements to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Indenture and, in the case
of Notes sold pursuant to Section 2(a), the Administrative Procedures for the
Notes, attached hereto as Exhibits A and B, respectively (the "Procedures"). The
Procedures may only be amended by written agreement of the
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Company and you after notice to, and with the approval of, the Indenture
Trustee. For the purposes of this Agreement, the term "Agent" shall refer to
either of you acting solely in the capacity as agent for the Company pursuant to
Section 2(a) and not as principal, the term "Purchaser" shall refer to either of
you acting solely as principal pursuant to Section 2(b) and not as agent, and
the term "you" shall refer to you together at any time either of you is acting
in both such capacities or in either such capacity.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the
"Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on such Form (File No._________), including
a basic prospectus, which has become effective, for
the registration under the Act of up to $75,000,000
aggregate initial offering price of Notes. Such
registration statement, as amended at the date of
this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies
in all other material respects with said Rule. The
Company has included in such registration statement,
or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424
under the Act, a supplement or supplements to the
form of prospectus included in such registration
statement relating to the Notes and the plan of
distribution thereof (any of such supplements, a
"Prospectus Supplement"). In connection with the sale
of Notes, the Company proposes to file with the
Commission pursuant to the applicable paragraph of
Rule 424 under the Act further supplements to the
Prospectus Supplement providing for the specification
of or a change in the interest rates, if any,
maturity dates, issuance prices, redemption terms and
prices, if any, and, if appropriate, other terms of
the Notes sold pursuant hereto or the offering
thereof (any such supplement being hereinafter called
a "Pricing Supplement").
(b) At each of the following times: (i) as of the
Execution Time, (ii) on the Effective Date, (iii)
when any supplement to the Prospectus is filed with
the Commission, (iv) as of the date of any Terms
Agreement (as defined by Section 2(b)) and (v) at the
date of delivery by the Company of any Notes sold
hereunder (a "Closing Date"), (1) the Registration
Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and
the Indenture, each as amended or supplemented as of
any such time, complied or will comply as to form in
all material respects with the applicable
requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the respective rules thereunder;
(2) the Registration Statement, as amended as of any
such time, did not or will not contain an untrue
statement of a material fact or omit to state a
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material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; and (3) the Prospectus, as supplemented
as of any such time, will not include an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that the Company makes no representations or
warranties as to (A) that part of the Registration
Statement that shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the
Trust Indenture Act of the Indenture Trustee, (B) any
information contained in any Prospectus Supplement
relating to The Depository Trust Company ("DTC") or
DTC's book-entry system or (C) the information
contained in or omitted from the Registration
Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with
information furnished in writing to the Company by
you specifically for use in connection with the
preparation of the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term
"Effective Date" shall mean the later of (i) each
date that the Registration Statement and any
post-effective amendment or amendments thereto became
or become effective or (ii) the time and date of the
filing of the Company's most recent Annual Report on
Form 10-K. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the
form of basic prospectus relating to the Notes
contained in the Registration Statement at the
Effective Date (unless such basic prospectus has been
amended by the Company subsequent to the Effective
Date, in which case "Basic Prospectus" shall mean the
form of basic prospectus as so amended). "Prospectus"
shall mean the Basic Prospectus as supplemented by
the Prospectus Supplement and as it may be further
amended or supplemented at the particular time
referred to. "Registration Statement" shall mean the
registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and
financial statements, as it may be amended at the
particular time referred to. "Rule 415" and "Rule
424" refer to such rules under the Act. Any reference
herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date
of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amended", "amendment"
or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer
to and include the filing of any document under the
Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic
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Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(d) Neither the Company nor any of its Subsidiaries (as
hereinafter defined) has sustained, since the date of
the latest audited financial statements included or
incorporated by reference in the Registration
Statement and the Prospectus, any loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, which has had
or is reasonably likely to have a material adverse
effect on the financial position, stockholders'
equity or results of operations of the Company and
its Subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Registration
Statement and the Prospectus; and, since the
respective dates as of which information is given in
the Registration Statement and the Prospectus, there
has not been any change in the capital stock (other
than pursuant to any stock purchase, dividend
reinvestment, savings, bonus, incentive, or similar
plan, or conversions of convertible securities into
common stock) or long-term debt (other than normal
amortization of debt premium and discount, bank or
finance company borrowings and repayments in the
ordinary course, or additional issuances or
repurchases of commercial paper) of the Company or
its Subsidiaries (except as may relate to (i) a trust
fund relating to certain public financing for The
Mount Xxxxx Water Company relating to its Mansfield
Project, and (ii) debenture payments that may be
required pursuant to the indenture relating to the
6-3/4% Convertible Subordinated Debentures of E'town
Corporation on the death of a holder) or any material
adverse change, or any development involving a
prospective material adverse change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the
Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus.
(e) Each of Elizabethtown Water Company, The Mount Xxxxx
Water Company, E'town Properties, Inc., Applied Water
Management, Inc., Liberty Water Company and Edison
Water Company (collectively the "Subsidiaries") and
the Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in
the Prospectus and is duly qualified to do business
in each jurisdiction in which it owns or leases real
property or in which the conduct of its business
requires such qualification except where the failure
to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the
business, properties, financial position or results
of operations of the Company and its Subsidiaries
taken as a whole; and all of the outstanding shares
of capital stock of each of the Subsidiaries have
been duly authorized and validly
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issued, are fully paid and nonassessable and are
owned beneficially by the Company subject to no
security interest, other encumbrance or adverse
claim.
(f) The creation, issuance and sale of the Notes have
been duly and validly authorized by the Company and,
when issued and authenticated in accordance with the
provisions of the Indenture and delivered and paid
for by the purchasers thereof, the Notes will
constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the
Indenture equally and ratably with the securities
outstanding thereunder; this Agreement and the
Indenture have been duly authorized, executed and
delivered by the Company and constitute valid and
legally binding instruments, enforceable in
accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement
of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law)
and to an implied covenant of good faith,
reasonableness and fair dealing; and the Notes and
the Indenture conform in all material respects to the
descriptions thereof in the Registration Statement
and the Prospectus.
(g) The issue and sale of the Notes and the compliance by
the Company with all of the provisions of the Notes,
the Indenture, this Agreement and any Terms
Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict
with or result in a breach of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is
a party or by which the Company is bound or to which
any of the property or assets of the Company is
subject (except that, for purposes of this
representation and warranty, compliance with any
financial covenant requiring an arithmetic
computation (not determinable at the Execution Time)
in respect of any Notes shall be measured at the time
of the establishment of the terms of such Notes), nor
will such action result in any violation of the
provisions of the Company's Certificate of
Incorporation, as amended, or the Bylaws of the
Company or any statute or any order, rule or
regulation of any court or governmental agency or
body having jurisdiction over the Company or any of
its property or assets; and no consent, approval,
authorization, order, registration or qualification
of or with any such court or governmental agency or
body is required for the issue and sale of the Notes
or the consummation by the Company of the other
transactions contemplated by this Agreement or any
Terms Agreement or the Indenture except such as have
been obtained prior to the Execution Time under the
Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
public offering of the Notes.
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(h) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any property
of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company
or any of its Subsidiaries, would individually or in
the aggregate have a material adverse effect on the
financial position, stockholders' equity or results
of operations of the Company and its Subsidiaries
taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others.
(i) There are no contracts or documents of the Company or
any of its Subsidiaries that are required to be
described in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement by the Act or by the rules and
regulations thereunder that have not been so
described or filed.
(j) The Company is not in violation of any of its
organizational documents or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement,
lease or other agreement to which the Company is a
party or by which the Company is bound or to which
any of the property or assets of the Company is
subject.
(k) The Company is not, and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Appointment of Agents; Solicitation by the Agent of Offers to
Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein,
the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase
of all or part of the Notes from the Company. On the
basis of the representations and warranties, and
subject to the terms and conditions set forth herein,
each Agent agrees, as agent of the Company, to use
its reasonable best efforts to solicit offers to
purchase the Notes from the Company upon the terms
and conditions set forth in the Prospectus (and any
supplement thereto) and in the Procedures. The
Company reserves the right, in its sole discretion,
to reject any offer to purchase Notes, in whole or in
part. In addition, the Company reserves the right, in
its sole discretion, to instruct the Agents to
suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase
the Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend
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solicitations of offers to purchase Notes from the
Company until such time as the Company has advised
them that such solicitation may be resumed. The
Company agrees to pay each Agent a commission on the
Closing Date with respect to each sale of Notes by
the Company as a result of a solicitation made by
such Agent pursuant to this subsection, in an amount
equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes
sold by the Company. Such commission shall be payable
as specified in the Procedures. Subject to the
provisions of this Section 2 and to the Procedures,
offers for the purchase of Notes may be solicited by
the Agents as agents for the Company at such times
and in such amounts as the Agents deem advisable. The
Company may from time to time offer Notes for sale
otherwise than through an Agent; provided, however,
that so long as this Agreement shall be in effect the
Company shall not solicit or accept offers to
purchase Notes through any agent other than the
Agents unless (I) such agents have entered into a
Distribution Agreement with the Company providing for
the sale of Notes on terms and conditions
substantially similar to those contained herein, and
(ii) such solicitation or acceptance is on terms with
respect to commissions substantially similar to those
set forth in Exhibit A hereto and the Company shall
give the Agents reasonable notice of the appointment
of such agent for the purpose of soliciting the
Notes.
(b) Subject to the terms and conditions stated herein,
whenever the Company and you determine that the
Company shall sell Notes directly to you as
Purchaser, each such sale of Notes shall be made in
accordance with the terms of this Agreement and,
unless otherwise agreed by the Company and the
Purchaser, any supplemental agreement relating
thereto between the Company and the Purchaser. Each
such supplemental agreement (which shall be
substantially in the form of Exhibit C hereto) is
herein referred to as a "Terms Agreement". The
Purchaser's commitment to purchase Notes pursuant to
any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of
the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms
Agreement shall describe the Notes to be purchased by
the Purchaser pursuant thereto, specify the principal
amount of such Notes, the price to be paid to the
Company for such Notes, the rate at which interest
will be paid on the Notes, the Closing Date for such
Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any modification
of the requirements for the delivery of the opinions
of counsel, the certificates from the Company or its
officers, and the letter from the Company's
independent auditors, pursuant to Section 6(b). Such
Terms Agreement shall also specify the period of time
referred to in Section 4(m). Delivery of the
certificates for Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made as agreed to
between the Company and the Purchaser as set forth in
the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement,
against payment of funds to the Company in the net
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amount due to the Company for such Notes by the
method and in the form set forth in the respective
Terms Agreement.
(c) The Agents shall not have any obligation to purchase
Notes from the Company as principal. However, absent
an agreement between an Agent and the Company that
such Agent shall be acting solely as an agent for the
Company, such Agent shall be deemed to be acting as
principal in connection with any offering of Notes by
the Company through such Agent. Accordingly, the
Agents, individually or in a syndicate, may agree
from time to time to purchase Notes from the Company
as principal for resale to investors and other
purchasers determined by such Agents. Any purchase of
Notes from the Company by an Agent as principal shall
be made in accordance with this Agreement, including
the Administrative Procedures attached hereto.
3. Offering and Sale of Notes. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the
Notes, the Company will not file any amendment of the
Registration Statement or supplement to the
Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a Pricing
Supplement or (iii) a supplement relating to an
offering of Securities other than the Notes) unless
the Company has furnished you a copy for your review
prior to filing and given you a reasonable
opportunity to comment on any such proposed amendment
or supplement. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus
to be filed with the Commission pursuant to the
applicable paragraph of Rule 424 within the time
period prescribed. The Company will promptly advise
you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission
pursuant to Rule 424, (ii) when, prior to the
termination of the offering of the Notes, any
amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request
by the Commission for any amendment of the
Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the
suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as
then supplemented would include an untrue statement
of a material fact or omit to state a material fact
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading, or if it shall be necessary to
amend the Registration Statement or to supplement the
Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company
promptly will (i) notify you to suspend solicitation
of offers to purchase Notes (and, if so notified by
the Company, you shall forthwith suspend such
solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the
Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or
omission or effect such compliance and (iii) supply
any supplemented Prospectus to you in such quantities
as you may reasonably request. If such amendment or
supplement, and any documents, certificates and
opinions furnished to you pursuant to paragraph (g)
of this Section 4 in connection with the preparation
of filing of such amendment or supplement are
satisfactory in all respects to you, you will, upon
the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment
is required, resume your obligation to solicit offers
to purchase Notes hereunder.
(c) During the term of this Agreement, the Company will
timely file all documents required to be filed with
the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act. In addition, on the
date (or as soon as practicable thereafter) on which
the Company makes any announcement to the general
public concerning earnings or concerning any other
event which is required to be described, or which the
Company proposes to describe, in a document filed
pursuant to the Exchange Act, the Company will
furnish to you the information contained in such
announcement. The Company will notify you of any
downgrading in the rating of the Notes or any other
debt securities of the Company or its Subsidiaries,
or any public announcement of placement of the Notes
or any other debt securities of the Company on what
is commonly termed a "watch list" for possible
downgrading, by any "nationally recognized
statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), promptly
after the Company learns of any such downgrading or
public announcement.
(d) As soon as practicable, the Company will make
generally available to its security holders and to
you an earnings statement or statements of the
Company and its Subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158
under the Act.
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(e) The Company will furnish to you and your counsel,
without charge (except as otherwise provided herein),
a reasonable number of copies of the Registration
Statement (including exhibits thereto) and, so long
as delivery of a prospectus may be required by the
Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions
as you may designate, will maintain such
qualifications in effect so long as required for the
distribution of the Notes, and upon your request will
arrange for the determination of the legality of the
Notes for purchase by institutional investors.
(g) During the term of this Agreement, the Company shall
furnish to you (i) copies of all annual, quarterly
and other reports furnished to stockholders, (ii)
copies of all annual, quarterly and current reports
(without exhibits but including documents
incorporated by reference therein) of the Company
filed with the Commission under the Exchange Act and
(iii) such other information concerning the Company
as you may reasonably request from time to time.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident
to the performance of its obligations under this
Agreement, including, but not limited to, the fees
and disbursements of its accountants and counsel, the
cost of printing or other production and delivery of
the Registration Statement, the Prospectus, all
amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents
relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the
fees and disbursements, including fees of counsel,
incurred pursuant to Section 4(f), the fees and
disbursements of the Indenture Trustee and the fees
of any ratings agency that rates the Notes, (ii)
reimburse you on a quarterly basis for all reasonable
out-of-pocket expenses incurred by you in connection
with this Agreement (including, but not limited to,
advertising and promotional expenses), and (iii) pay
the reasonable fees and expenses of your counsel
incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be a new making to
you of the representations and warranties of the
Company in Section 1 (except that such
representations and warranties shall be deemed to
relate solely to the Registration Statement as then
amended and to the Prospectus as then amended and
supplemented to relate to such Notes). Each such
acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an
additional representation, warranty and agreement by
the Company that, as of the settlement date for the
sale of such Notes, after giving effect to the
issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any
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other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate
amount of Securities (including any Notes) which have
been issued and sold by the Company will not exceed
the amount of Securities registered pursuant to the
Registration Statement of the Company. The Company
will inform you promptly upon your request of the
aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(j) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration
Statement or the Prospectus is amended or
supplemented (other than by a Pricing Supplement) the
Company will deliver or cause to be delivered
promptly to you a certificate of the Company, signed
by any of the Chairman of the Board, the President,
any Vice President having responsibilities for
financial matters or the Controller or Treasurer of
the Company, dated the date of the effectiveness of
such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you,
of the same tenor as the certificate referred to in
Section 5(d) but modified to relate to the last day
of the fiscal quarter for which financial statements
of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus
as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such
supplement.
(k) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration
Statement or the Prospectus is amended or
supplemented (other than by a Pricing Supplement),
the Company shall furnish or cause to be furnished
promptly to you a written opinions of Xxxxxx X.
Xxxxxxxx, Secretary of, and counsel to, the Company,
and Winthrop, Stimson, Xxxxxx & Xxxxxxx ("WSPR"),
special New York counsel for the Company,
satisfactory to you, dated the date of the
effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to
you, of the same tenor as the opinion referred to in
Section 5(b), but modified to relate to the
Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement or,
in lieu of such opinion, such counsel may furnish you
with a letter to the effect that you may rely on such
counsel's last opinion to the same extent as though
it were dated the date of such letter authorizing
reliance (except that statements in such last opinion
will be deemed to relate to the Registration
Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration
Statement or the Prospectus is amended or
supplemented (other than by a Pricing Supplement) to
set forth amended or supplemental financial
information (derived from the accounting records of
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the Company subject to the internal controls of the
Company's accounting system or derived directly from
such records by computation), the Company shall cause
its independent auditors promptly to furnish you a
letter, dated the date of the effectiveness of such
amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of
the same tenor as the letter referred to in Section
5(e) with such changes as may be necessary to reflect
the amended and supplemental financial information
included or incorporated by reference in the
Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter.
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, issue or
announce the proposed issuance of any of its debt
securities, including the Notes, with maturities or
other terms substantially similar to the Notes being
purchased pursuant to such Terms Agreement.
(n) The Company shall not be required to comply with the
provisions of subsections (j), (k) and (l) of this
Section 4 during any period (which may occur from
time to time during the term of this Agreement) for
which the Company has instructed the Agents to
suspend the solicitation of offers to purchase Notes;
provided that, during any such period, any Purchaser
does not then hold any Notes purchased pursuant to a
Terms Agreement. Whenever the Company has instructed
the Agents to suspend the solicitation of offers to
purchase Notes for any such period, however, prior to
instructing the Agents to resume the solicitation of
offers to purchase Notes or prior to entering into
any Terms Agreement, the Company shall be required to
comply with the provisions of subsections (j), (k)
and (l) of this Section 4, but only to the extent of
delivering or causing to be delivered the most recent
certificate, opinion or letter, as the case may be,
which would have otherwise been required under each
such subsection unless the Agents otherwise
reasonably request that such documents in respect of
prior periods be delivered.
(o) As soon as practicable after the Execution Time, the
Company will make all recordings, registrations and
filings necessary to perfect and preserve the rights
created under the Supplemental Indenture.
5. Conditions to the Obligations of the Agents. The obligations of the
Agents to solicit offers to purchase the Notes shall be subject to (i) the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date and when any
supplement to the Prospectus is filed with the Commission, (ii) the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions:
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(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424, the
Prospectus, and any such supplement, shall have been
filed in the manner and within the time period
required by Rule 424; and no stop order suspending
the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have furnished to the Agents the
opinions of Xxxxxx X. Xxxxxxxx, Secretary of, and
counsel to, the Company, and of WSPR, special New
York counsel for the Company, dated the Execution
Time, to the effect that:
(i) (To be delivered by Xxxxxx X. Xxxxxxxx) The
Company and each of its Subsidiaries has
been duly incorporated and is validly
existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, with power and authority
(corporate and governmental) to own its
properties and conduct its business as
described in the Prospectus, as amended or
supplemented, and is duly qualified to do
business in each jurisdiction in which it
owns or leases real property or in which the
conduct of its business requires such
qualification except where the failure to be
so qualified, considering all such cases in
the aggregate, does not involve a material
risk to the business, properties, financial
position or results of operations of the
Company, and all of the outstanding shares
of capital stock of each of the Subsidiaries
have been duly authorized and validly
issued, are fully paid and non-assessable
and are owned of record and beneficially by
the Company subject to no security interest,
other encumbrance, or adverse claim.
(ii) (To be delivered by Xxxxxx X. Xxxxxxxx)
Other than as set forth or contemplated in
the Prospectus, there are no legal or
governmental proceedings pending to which
the Company is a party or of which any
property of the Company is the subject
which, if determined adversely to the
Company, would individually or in the
aggregate have a material adverse effect on
the consolidated financial position,
stockholders' equity or results of
operations of the Company and its
Subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others.
(iii) (To be delivered by Xxxxxx X. Xxxxxxxx) This
Agreement has been duly authorized, executed
and delivered by the Company
(iv) (To be delivered by WSPR) This Agreement is
legally binding instrument, enforceable in
accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent conveyance,
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reorganization, moratorium and other similar
laws relating to or affecting the
enforcement of creditors' rights generally,
to general equitable principles (regardless
of whether such enforceability is considered
in a proceeding in equity or at law) and to
an implied covenant of good faith,
reasonableness and fair dealing.
(v) (To be delivered by Xxxxxx X. Xxxxxxxx) The
Indenture has been duly authorized, executed
and delivered by the Company
(vi) (To be delivered by WSPR) The Indenture is a
legally binding instrument, enforceable in
accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws relating
to or affecting the enforcement of
creditors' rights generally, to general
equitable principles (regardless of whether
such enforceability is considered in a
proceeding in equity or at law) and to an
implied covenant of good faith ,
reasonableness and fair dealing; and the
Indenture has been duly qualified under the
Trust Indenture Act.
(vii) (To be delivered by Xxxxxx X. Xxxxxxxx) The
creation, issuance and sale of the Notes
have been duly and validly authorized by the
Company and, when issued in accordance with
the authorizing resolutions of the Board of
Directors of the Company and in accordance
with any applicable orders of regulatory
bodies and, when maturity dates, interest
rates and other similar terms have been
inserted therein and such Notes have been
executed and authenticated as specified in
the Indenture and delivered against payment
of the consideration therefor determined in
accordance with this Agreement, such notes
will be valid obligations of the Company.
(viii) (To be delivered by WSPR) When issued in
accordance with the authorizing resolutions
of the Board of Directors of the Company and
in accordance with any applicable orders of
regulatory bodies and, when maturity dates,
interest rates and other similar terms have
been inserted therein and such Notes have
been executed and authenticated as specified
in the Indenture and delivered against
payment of the consideration therefor
determined in accordance with this Agreement
such Notes will constitute legally binding
obligations of the Company enforceable in
accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium, and other similar laws relating
to or affecting the enforcement of
creditors' rights generally, to general
equitable principles (regardless of whether
such enforceability is considered in a
proceeding in equity or at law) and to an
implied covenant of good faith,
reasonableness and fair dealing, and will be
entitled to the benefit provided by the
Indenture equally and ratably with the
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securities outstanding thereunder; and the
Notes and Indenture conform as to legal
matters in all material respects to the
descriptions thereof contained in the
Registration Statement and the Prospectus.
(ix) (To be delivered by both Xxxxxx X. Xxxxxxxx
and WSPR, as noted) The issue and sale of
the Notes and the compliance by the Company
with all of the provisions of the Notes, the
Indenture and this Agreement and the
consummation of the transactions therein and
herein contemplated (except as to compliance
with any financial covenant requiring an
arithmetic computation not determinable at
the Execution Time as to which such counsel
need express no opinion) will not conflict
with or result in a breach of any of the
terms or provisions of, or constitute a
default under, any indenture, mortgage, deed
of trust, loan agreement or material other
agreement or instrument known, as of the
date of such opinion, to such counsel to
which the Company is a party or by which the
Company is bound or to which any of the
property or assets of the Company is
subject, nor will such action result in any
violation of the provisions of the Company's
Certificate of Incorporation, as amended, or
the Bylaws of the Company or any statute or
any order, rule or regulation known, as of
the date of such opinion, to such counsel of
any (To be delivered by Xxxxxx X. Xxxxxxxx)
[New Jersey] (To be delivered by WSPR) [New
York or Federal]court or governmental agency
or body having jurisdiction over the Company
or any of its properties.
(x) (To be delivered by both Xxxxxx X. Xxxxxxxx
and WSPR, as noted) No consent, approval,
authorization, order, registration or
qualification of or with any (To be
delivered by Xxxxxx X. Xxxxxxxx) [New
Jersey] (To be delivered by WSPR) [New York
or Federal] court or governmental agency or
body having jurisdiction over the Company or
any of its properties is required for the
issue and sale of the Notes or the
consummation by the Company of the other
transactions contemplated by this Agreement,
or the Indenture, except such as have been
obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, registrations or
qualifications as may be required under
state securities or Blue Sky laws in
connection with the public offering of the
Notes.
(xi) (To be delivered by WSPR) The Registration
Statement, at the Effective Date, and the
Prospectus, as of the date of such opinion
(except as to the financial statements and
other financial or statistical data
contained or incorporated by reference
therein and except as to any information
contained in any Prospectus Supplement
relating to DTC or DTC's book-entry system
as to which such counsel need express no
opinion) comply as to form in all material
respects with all
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applicable requirements of the Act, and,
with respect to the documents or portions
thereof filed with the Commission pursuant
to the Exchange Act and incorporated by
reference in the Prospectus pursuant to Item
12 of Form S-3, the Exchange Act and the
applicable instructions, rules and
regulations of the Commission thereunder; on
the basis of information received from the
Commission, at the date of such opinion, the
Registration Statement has become effective
under the Act, and, to the best knowledge of
such counsel, no proceedings for a stop
order with respect thereto have been
instituted or are pending or threatened
under Section 8 of the Act.
(xii) (To be delivered by both Xxxxxx X. Xxxxxxxx
and WSPR, as noted) Based on such counsel's
participation in the preparation of the
Registration Statement (but such opinion may
state that such counsel did not
independently check or verify the
correctness of the statements made by the
Company or factual information included in
the Registration Statement and Prospectus,
and thereby may assume the correctness
thereof, except insofar as such statements
or information relate to such counsel or are
stated in the Registration Statement or
Prospectus as having been made on their
authority as experts), no facts have come to
the attention of such counsel to cause them
to believe, and such counsel have no reason
to believe, that the Registration Statement,
at the Effective Date, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading (except as to the
financial statements or other financial or
statistical data contained in or
incorporated by reference in the
Registration Statement and the Prospectus
and except as to any information contained
in any Prospectus Supplement relating to DTC
or DTC's book-entry system), or that the
Prospectus, as of the date of such opinion,
includes an untrue statement of a material
fact or omits to state a material fact
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made, not misleading
(except as to the financial statements or
other financial or statistical data
contained in or incorporated by reference in
the Registration Statement and the
Prospectus and except as to any information
contained in any Prospectus Supplement
relating to DTC or DTC's book-entry system).
(xiii) The Company is not subject to regulation
under the Public Utility Holding Company Act
of 1935.
(xiv) As to factual matters (including relating to
the Company's financial condition) included
in said opinion, such counsel may rely upon
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certificates of public officials as of a
recent date, the warranties and
representations of the Company set forth in
this Agreement, and certificates of the
Company made pursuant to the provisions of
this Agreement.
(c) The Agents shall have received from XxXxxxxx &
English, LLP, counsel for the Agents, an opinion,
dated the Execution Time, with respect to the
issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as
the Agents may reasonably require, and the Company
shall have furnished to such counsel such documents
as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Agents a
certificate of the Company, signed by any of the
Chairman of the Board, the President, any Vice
President having responsibilities for financial
matters or the Controller or Treasurer of the
Company, dated the Execution Time, to the effect that
the signer of such certificate has carefully examined
the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and
that:
(i) The representations and warranties of the
Company in this Agreement and the Indenture
are true and correct in all material
respects and the Company has complied with
all the agreements and satisfied all the
conditions on its part to be performed or
satisfied as a condition to the obligation
of the Agents to solicit offers to purchase
the Notes.
(ii) No stop order suspending the effectiveness
of the Registration Statement has been
issued and no proceedings for that purpose
have been instituted or, to the Company's
knowledge, threatened.
(iii) (1) Neither the Company nor any of its
Subsidiaries has sustained since the date of
the latest audited financial statements
included or incorporated by reference in the
Registration Statement and the Prospectus,
any loss or interference with its business
from fire, explosion, flood or other
calamity, whether or not covered by
insurance, or from any labor dispute or
court or governmental action, order or
decree, which has had or is reasonably
likely to have a material adverse effect on
the financial position, stockholders' equity
or results of operations of the Company and
its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the
Registration Statement and the Prospectus
and (2) since the respective dates as of
which information is given in the
Registration Statement and the Prospectus,
there has not been any change in the
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capital stock (other than pursuant to any
stock purchase, dividend reinvestment,
savings, bonus, incentive, or similar plan,
conversions of convertible securities into
common stock) or long-term debt (other than
normal amortization of debt premium and
discount, bank or finance company borrowings
and repayments in the ordinary course, or
additional issuances or repurchases of
commercial paper) of the Company or its
Subsidiaries (except as may relate to (i) a
trust fund relating to certain public
financing for The Mount Xxxxx Water Company
relating to its Mansfield Project, and (ii)
debenture payments that may be required
pursuant to the indenture relating to the
6-3/4% Convertible Subordinated Debentures
of E'town Corporation on the death of a
holder) or any material adverse change, or
any development involving a prospective
material adverse change, in or affecting the
general affairs, management, financial
position, stockholders' equity or results of
operations of the Company and its
subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the
Registration Statement and the Prospectus.
(e) At the Execution Time, Deloitte & Touche LLP shall
have furnished to the Agents a letter, dated as of
the Execution Time, in form and substance
satisfactory to the Agents, stating in effect that:
(i) They are independent auditors with respect
to the Company within the meaning of the Act
and the applicable published rules and
regulations thereunder.
(ii) In their opinion the financial statements
and schedules of the Company included in the
Company's Annual Report on Form 10-K for the
year ended December 31, 1997, which are
incorporated by reference in the Prospectus
and examined by such firm, comply as to form
in all material respects with the applicable
accounting requirements of the Act and the
Exchange Act, and the respective published
rules and regulations thereunder.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted
auditing standards) consisting of: (A)
reading the Annual Report on Form 10-K which
contains audited consolidated financial
statements (the "Audited Amounts"), (B)
performing the procedures specified by the
American Institute of Certified Public
Accountants for a review of interim
financial information as described in SAS
No. 71, Interim Financial Information, on
the unaudited condensed interim financial
statements of the Company included in the
Registration Statement and the Prospectus
(the "Unaudited Statements"), and reading
any more recent unaudited interim financial
data of the Company, (C) reading the minutes
of meetings of the shareholders, Board of
Directors and Committees of
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the Board of Directors of the Company held
during the period from December 31, 1997 as
set forth in the minutes book through a
specified date not more than five business
days prior to the date of such letter; and
(D) making inquiries of certain officials of
the Company who have responsibility for
financial and accounting matters regarding
the specific items for which representations
are requested in Sections 5(e)(iii)(1) to
5(e)(iii)(4), nothing has come to their
attention as a result of the foregoing
procedures that caused them to believe that:
(1) the Unaudited Statements
incorporated by reference in the
Registration Statement and the Prospectus do
not comply in form in all material respects
with the applicable accounting requirements
and with the published rules and regulations
of the Commission with respect to financial
statements included or incorporated in
Quarterly Reports on Form 10-Q under the
Exchange Act; or that any material
modifications should be made to said
Unaudited Statements for them to be in
conformity with generally accepted
accounting principles;
(2) the Audited Amounts were not
derived from the financial statements of the
Company;
(3) at the date of the latest
available monthly consolidated balance sheet
of the Company read by such accountants,
there was any change in the capital stock
(other than pursuant to any stock purchase,
dividend reinvestment, savings, bonus,
incentive, or similar plan, or conversions
of convertible securities into common stock)
or long-term debt (other than normal
amortization of debt premium and discount,
bank or finance company borrowings and
repayments in the ordinary course, or
additional issuances or repurchases of
commercial paper) of the Company or its
Subsidiaries (except as may relate to (i) a
trust fund relating to certain public
financing for The Mount Xxxxx Water Company
relating to its Mansfield Project, and (ii)
debenture payments that may be required
pursuant to the indenture relating to the
6-3/4% Convertible Subordinated Debentures
of E'town Corporation on the death of a
holder), or any decrease in the total
shareholders' equity, as compared with
amounts shown on the latest balance sheet
included in the Audited Statements, except,
in all instances, for the above-referenced
changes or changes or decreases which are
described in such letter; or
(4) for the period subsequent to
the date of the Audited Statements to the
date of the latest available monthly
consolidated income statement of the Company
read by such accountants, there were any
decreases, as compared with the
corresponding period of the previous year,
in total operating revenues or net income of
the
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Company, except, in all instances, for
changes or decreases which are described in
such letter.
(iv) They have compared certain dollar amounts
(or percentages derived from such dollar
amounts) (A) which appear in the Prospectus
under the caption "Ratio of Earnings to
Fixed Charges", (B) which appear or are
incorporated by reference in the Company's
Annual Report on Form 10-K incorporated by
reference in the Registration Statement and
the Prospectus under the caption
"Management's Discussion and Analysis of
Financial Condition and Results of
Operations" or (C) which appear in the most
recent of the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the
Registration Statement and the Prospectus
under the captions "Management's Discussion
and Analysis of Financial Condition and
Results of Operations" and "Ratio of
Earnings to Fixed Charges" (in each case to
the extent that such dollar amounts,
percentages and other financial information
are derived from the accounting records of
the Company subject to the internal controls
of the Company's accounting system or are
derived directly from such records by
computation) to the accounting records of
the Company or schedules prepared from data
in such records and have found such dollar
amounts, percentages and other financial
information to be in agreement.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) The Agents shall have received copies of the letters
of Representations between the Company, the Indenture
Trustee and DTC, satisfactory to each of you,
summarizing DTC's agreement to hold, safekeep and
effect book-entry transfers of the Notes.
(g) Prior to the Execution Time, the Company shall have
furnished to the Agents such further information,
documents, certificates and opinions of counsel as
the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Agents and counsel for the Agents this Agreement and all
obligations of the Agents hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing. The documents required to be
delivered by this Section 5 at the Execution Time shall be delivered at the
office of WSPR, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, XX 00000-0000.
6. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part
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of the Company herein as of the date of any related Terms Agreement and as of
the Closing Date for such Notes, to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for the purpose of suspending the
effectiveness of the Registration Statement shall
have been instituted or threatened.
(b) If specified by any related Terms Agreement and
except to the extent modified by such Terms
Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the
Company, dated as of the Closing Date, to the effect
set forth in Section 5(d), (ii) the opinions of
Xxxxxx X. Xxxxxxxx, Secretary of, and counsel to, the
Company, and of WSPR, special New York counsel for
the Company, dated as of the Closing Date,
substantially to the effect set forth in Section
5(b), (iii) the opinion of XxXxxxxx & English, LLP,
counsel for the Purchaser, dated as of the Closing
Date, substantially to the effect set forth in
Section 5(c) and (iv) the letter of Deloitte &
Touche, LLP, independent auditors for the Company,
dated as of the Closing Date, substantially to the
effect set forth in Section 5(e); provided, however,
that references to the Registration Statement and the
Prospectus in such certificate, opinions and letter
shall be to the Registration Statement and the
Prospectus as then amended and supplemented.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information,
certificates and documents as the Purchaser may
reasonably request. If any of the conditions
specified in this Section 6 shall not have been
fulfilled in all material respects when and as
provided in this Agreement and any Terms Agreement,
or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms
Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and
all obligations of the Purchaser thereunder and with
respect to the Notes subject thereto may be canceled
at, or any time prior to, the respective Closing Date
by the Purchaser. Notice of such cancellation shall
be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser, and any person who purchases pursuant to a solicitation
by the Agents, shall have the right to refuse to purchase such Note if, at the
Closing Date therefor, either (a) any condition set forth in Section 5 or 6, as
applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, there shall have occurred (i) any change in or affecting the
business or properties of the Company and its Subsidiaries, considered as one
enterprise, the effect of which, in the reasonable judgment of
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such person, has a material adverse effect on the investment quality of such
Note or (ii) any event described in paragraphs (ii),(iii), (iv) or (v) of
Section 9(b).
8. Indemnification and Contribution.
(a) The Company will indemnify you and hold you harmless
against all losses, claims, damages or liabilities,
joint or several, to which you may become subject,
under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, any
preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus
relating to the Notes, or any amendment or supplement
thereto, or arise out of or are based upon the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and will reimburse you for any legal or
other expenses reasonably incurred by you in
connection with investigating or defending any such
action or claim; provided, however, that the Company
shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged
omission made in any preliminary prospectus, any
preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus
relating to the Notes or any such amendment or
supplement in reliance upon and in conformity with
written information furnished to the Company by you
expressly for use in the Prospectus.
(b) You will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act
or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained
in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to
the Notes, or any amendment or supplement thereto, or
arise out of or are based upon the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, in each case
to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or
omission or alleged omission was made in any
preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the
Prospectus and any other prospectus relating to the
Notes, or any amendment or supplement thereto, in
reliance upon and in conformity with written
information furnished to the Company by you expressly
for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by
the Company in connection with investigating or
defending any such action or claim. The Company
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acknowledges that the statements set forth in the
last paragraph of the cover page, and under the
heading "Plan of Distribution," of the Prospectus
Supplement constitute the only information furnished
in writing by any of you for inclusion in the
documents referred to in the foregoing indemnity, and
you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in
respect thereof is to be made against the
indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement
thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by
the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any
indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the
indemnified party in any action for which
indemnification is sought (in which case the
indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties
except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the
indemnified party in an action, the indemnified party
shall have the right to employ separate counsel
(including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of
one such separate counsel for all indemnified parties
if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would
present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or
targets of, any such action include both the
indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded
that there may be legal defenses available to it
and/or other indemnified parties which are different
from or additional to those available to the
indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party
within a reasonable time after notice of the
institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying
party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above
in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall
contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to
reflect the relative benefits
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24
received by the Company on the one hand and you on
the other in connection with the statements or
omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect
thereof), as well as other equitable considerations,
including relative fault. The relative fault shall be
determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to
state a material fact relates to information supplied
by the Company on the one hand or you on the other
and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent
such statement or omission. The Company and you agree
that it would not be just and equitable if
contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other
method of allocation which does not take account of
the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified
party in connection with investigating or defending
any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any who
controls any of you within the meaning of the Act or
the Exchange Act; and the obligations of you under
this Section 8 shall be in addition to any liability
which you may otherwise have and shall extend, upon
the same terms and conditions, to each officer and
director of the Company and to each person, if any,
who controls the Company within the meaning of the
Act or the Exchange Act.
9. Termination.
(a) This Agreement will continue in effect until
terminated as provided in this Section 9. This
Agreement may be terminated by either the Company as
to you or by you as to the Company, by giving written
notice of such termination to you or the Company, as
the case may be. This Agreement shall so terminate at
the close of business on the first business day
following the receipt of such notice by the party to
whom such notice is given. In the event of such
termination, no party shall have any liability to the
other party hereto, except as provided in the third
paragraph of Section 2(a), Section 4(h), Section 8
and Section 10.
(b) Each Term Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by
notice given to the Company prior to delivery of any
payment for Notes to be purchased thereunder, if
prior to such time (i)
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25
the Purchaser shall exercise its right to refuse to
purchase the Notes which are the subject of such
Terms Agreement in accordance with the provisions of
Section 7, or (ii) there shall have occurred any
outbreak or escalation of hostilities or other
national or international calamity or crisis, the
effect of which shall be such as to make it, in the
reasonable judgment of the Purchaser, impractical to
market the Notes or enforce contracts for the sale of
the Notes, or (iii) trading in any securities of the
Company shall have been suspended by the Commission
or a national securities exchange, or if trading
generally on either the American Stock Exchange or
the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices
for securities shall have been required, by either of
said exchanges or by order of the Commission or any
other governmental authority, or if a banking
moratorium shall have been declared by either
Federal, new York or New Jersey authorities, or (iv)
if the rating assigned by any "nationally recognized
statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) to the Notes
as of the date of the applicable Terms Agreement
shall have been lowered since that date, or (v) the
subject matter of any amendment or supplement to the
Registration Statement or the Prospectus prepared and
issued by the Company, or the exceptions set forth in
any letter of Deloitte & Touche LLP furnished
pursuant to Section 5(e) hereof, shall have made it,
in the judgment of the Purchaser, impracticable or
inadvisable to market the Notes or enforce contracts
for the sale of the Notes.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the directors, officers,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
4(h) and 8 hereof shall survive the termination or cancellation of this
Agreement. The provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for which an agreement to
purchase exists prior to the termination hereof shall survive any termination of
this Agreement. If at the time of termination of this Agreement any Purchaser
shall own any Notes with the intention of selling them, the provisions of
Section 4 shall remain in effect until such Notes are sold by the Purchaser.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telecopied and confirmed to such of you, at the address specified in Schedule
I hereto; or, if sent to the Company, will be mailed, delivered or telecopied
and confirmed to it at E'town Corporation, 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000-0000 Attention: Xxx. Xxxx X. Xxxxx
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
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26
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New Jersey applicable to contracts made
and to be performed within the State of New Jersey.
14. Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
E'TOWN CORPORATION
By:___________________________
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
X.X. XXXXXXX & SONS, INC.
By: ______________________________
Title:
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: ______________________________
Title:
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SCHEDULE I
Commissions:
The Company agrees to pay the Agent a commission equal to the following
percentage of the principal amount of each Note sold by the Agent:
Term Commission Rate
---- ---------- ----
From 1 year to less than 18 months %
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
Address for Notice to You:
Notices to X.X. Xxxxxxx & Sons, Inc. shall be directed to it at Xxx
Xxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: [ ], and to Xxxx Xxxxx
Xxxx Xxxxxx, Incorporated at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000,
Attention: [ ].
29
EXHIBIT A
E'town Corporation
Medium-Term Notes
Administrative Procedures
Medium-Term Notes (the " Notes"), are to be offered on a continuing
basis by E'town Corporation (the "Company"). X.X. Xxxxxxx & Sons, Inc. and Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated, as agents (the "Agents"), have agreed to use
their reasonable best efforts to solicit offers to purchase the Notes. The Notes
are being sold pursuant to a Distribution Agreement between the Company and the
Agents dated _______, 1998 (the "Distribution Agreement") to which these
administrative procedures are attached as an exhibit. The Notes will be issued
under the Company's Indenture, dated as of _________, 1998 (the "Indenture"), to
Summit Bank ("Summit"), as trustee (the "Indenture Trustee"). Summit will act as
the paying agent (the "Paying Agent") for the payment of principal and premium,
if any, and interest on the Notes and will perform, as the Paying Agent, unless
otherwise specified, the other duties specified herein.
The Notes will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Notes have been registered with
the Securities and Exchange Commission (the "Commission") and will bear interest
at fixed rates ("Fixed Rate Notes").
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Summit, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certificated Note"). Except as set forth in the Prospectus or
in a pricing supplement (as defined in Section 1(c) of the Distribution
Agreement), (i) each Note will be initially issued as a Book-Entry Note and (ii)
an owner of a Book-Entry Note will not be entitled to receive a certificate
representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Book-Entry Notes will be issued in accordance with
the administrative procedures set forth in Part I hereof and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Administrative procedures applicable to both Book-Entry Notes
and Certificated Notes are set forth in Part III hereof. Administrative
responsibilities, document control and record-keeping functions will be handled
for the Company by its [Controller and Treasurer]. The Company will promptly
advise the Agents and the Indenture Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Indenture Trustee
are to communicate regarding offers to purchase Notes and the details of their
delivery.
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To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture or the Distribution Agreement, the
relevant provisions of the Notes, the Indenture and the Distribution Agreement
shall control. Unless otherwise defined herein, terms defined in the Indenture
shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Summit will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations to
be delivered from the Company and Summit to DTC and a Medium-Term Note
Certificate Agreement between Summit, and DTC, dated as of __________, 1998 (the
"MTN Certificate Agreement"), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company
will issue a single global security in fully registered
form without coupons (a "Global Security") representing
up to $[75,000,000] principal amount of all such Notes
that have the same date of maturity, ("Maturity Date"),
redemption provisions, if any, and interest rate. Each
Global Security will be dated and issued as of the date
of its authentication by the Indenture Trustee. No
Global Security will represent any Certificated Note.
Identification
Numbers: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP
numbers (including tranche numbers), which series
consists of approximately _____ CUSIP numbers and
relates to Global Securities representing the Book-Entry
Notes. The Company has obtained from the CUSIP Service
Bureau a written list of such series of reserved CUSIP
numbers and has delivered to DTC and the Indenture
Trustee a written list of ___ CUSIP numbers of such
series. The Company will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure
"B". It is expected that DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Securities. At any
time when fewer than ___ of the reserved CUSIP numbers
of the series remain unassigned to Global Securities,
the Indenture Trustee shall so advise the Company and,
if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Company shall deliver
a list of such additional CUSIP numbers to the Indenture
Trustee and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security Register
maintained under the Indenture. It is expected that the
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC
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(with respect to such Note, the "Participants") to act
as agent or agents for such owner in connection with the
book-entry system maintained by DTC, and it is expected
that DTC will record in book-entry form, in accordance
with instructions provided by such Participants, a
credit balance with respect to such beneficial owner in
such Note in the account of such Participants. The
ownership interest of such beneficial owner in such Note
will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect Participants
in DTC) acting on behalf of beneficial transferees and
transferors of such Note.
Consolidations: Upon receipt of written instructions from the Company,
Summit may deliver to DTC and the CUSIP Service Bureau
at any time a written notice of consolidation (a copy of
which shall be attached to the resulting Global
Security) specifying (i) the CUSIP numbers of two or
more Outstanding Global Securities that represent
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice
is delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new CUSIP
number to be assigned to such replacement Global
Security. Upon receipt of such a notice, it is expected
that DTC will send to its participants (including
Summit) a written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, Summit will
deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be exchanged
will no longer be valid. On the specified exchange date,
Summit will exchange such Global Securities for a single
Global Security bearing the new CUSIP number, and the
CUSIP numbers of the exchanged Global Securities will,
in accordance with CUSIP Service Bureau procedures, be
canceled and not reassigned until the Book-Entry Notes
represented by such exchanged Global securities have
matured or been redeemed.
Maturities: Each Book-Entry Note will mature on a date not less than
one year nor more than 30 years after the date of
settlement for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. Global Securities will be
denominated in principal amounts not in excess of
$___________.
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Interest: General. Interest on each Book-Entry Note will accrue
from and including the original issue date of, or the
last date to which interest has been paid on, the Global
Security representing such Note. Each payment of
interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date or
the Maturity Date or, upon earlier redemption or
repayment, the date of such redemption or repayment (the
"Redemption Date"), as the case may be. Interest payable
on the Maturity Date or the Redemption Date of a
Book-Entry Note will be payable to the person to whom
the principal of such Note is payable. Standard & Poor's
Corporation will use the information received in the
pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other information
regarding the related Global Security in the appropriate
weekly bond report published by Standard & Poor's
Corporation.
Record Dates. The record date with respect to any Interest Payment
Date shall be the [December 15 or June 15], as the case
may be (whether or not a Business Day) immediately
preceding such Interest Payment Date (each a "Regular
Record Date").
Fixed Rate Book-
Entry Notes: Interest payments on Fixed Rate Book-Entry Notes will be
made semi-annually on [January 1 and July 1] of each
year and on the Maturity Date or the Redemption Date;
provided, however, that in the case of a Fixed Rate
Book-Entry Note issued between a Regular Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the
next succeeding Regular Record Date.
Payments of
Interest: Payment of Interest Only. Promptly after each Principal
and Regular Record Date, the Paying Agent will deliver
to the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each
Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with the
Maturity Date) and the total of such amounts. It is
expected that DTC will confirm the amount payable on
each Global Security on such Interest Payment Date by
reference to the appropriate (daily or weekly) bond
reports published by Standard & Poor's Corporation. The
Company will pay to the Paying Agent the total amount of
interest due on such Interest Payment Date (other than
on the Maturity Date), and the Paying Agent will pay
such amount to DTC at the times and in the manner set
forth under "Manner of Payment" below. If any Interest
Payment Date for a Book-Entry Note is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day, except that, if such Note
is a LIBOR Note and such next succeeding Business Day is
in the next succeeding calendar month, such payment will
be made on the immediately
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preceding Business Day; and no interest shall accrue on
such payment for the period from and after such Interest
Payment Date.
Payments on Maturity
Date, Etc.: On or about the first Business Day of each month on
which a payment is due, the Paying Agent will deliver to
the Company and DTC a written list of principal and, to
the extent known at such time, interest to be paid on
each Global Security maturing either on the Maturity
Date or the Redemption Date in the following month. The
Company and DTC will confirm with the Paying Agent the
amounts of such principal and interest payments with
respect to each such Global Security on or about the
fifth Business Day preceding the Maturity Date or the
Redemption Date, as the case may be, of such Global
Security. The Company will pay to the Paying Agent the
principal amount of such Global Security, together with
interest due on such Maturity Date or Redemption Date in
the manner set forth below under "Manner of Payment".
The Paying Agent will pay such amounts to DTC at the
times and in the manner set forth below under "Manner of
Payment". If the Maturity Date or the Redemption Date of
a Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made
on the next succeeding Business Day, except that, if
such Note is a LIBOR Note and such next succeeding
Business Day is in the next succeeding calendar month,
such payment will be made on the immediately preceding
Business Day; and no interest shall accrue on such
payment for the period from and after such Maturity Date
or the Redemption Date. Promptly after payment to DTC of
the principal and interest due at the Maturity Date or
the Redemption Date of such Global Security, the Paying
Agent will cancel such Global Security in accordance
with the terms of the Indenture.
Manner of Payment: The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or on the
Maturity Date or the Redemption Date shall be paid by
the Company to the Paying Agent in immediately available
funds for use by the Paying Agent no later than 9:30
A.M. (New York City time) on such date. The Company will
make such payment on such Global Securities by wire
transfer to the Paying Agent or by the Paying Agent's
debiting the account of the Company maintained with the
Paying Agent.The Company will confirm such instructions
in writing to the Paying Agent. Prior to 10:00 A.M. (New
York City time) on each Maturity Date or Redemption Date
or as soon as reasonably possible thereafter, the Paying
Agent will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously agreed
to with DTC) to an account at the Federal Reserve Bank
of New York previously agreed to with DTC, in funds
available for immediate use by DTC, each payment of
principal (together with interest thereon) due on Global
Securities on any Maturity Date or Redemption Date. On
each Interest Payment Date, interest payments shall be
made to DTC in same day funds in accordance with
existing arrangements between the Paying Agent and DTC.
Thereafter, on each such date, it is
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expected that DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Paying Agent shall have any
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes: The amount of any taxes required under applicable law to
be withheld from any interest payment on a Book-Entry
Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible
for forwarding payments and materials directly to the
beneficial owner of such Note.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following the date of sale of a Book-Entry Note unless
the Company, the Indenture Trustee and the purchaser
agree to settlement on another day that shall be no
earlier than the next Business Day.
Settlement Procedures with regard to each Book-Entry
Note sold by the Company through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Company by telephone,
followed by facsimile transmission, of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. The interest rate.
4. Interest Payment Dates.
5. Redemption provisions, if any, or
provisions for the repayment or purchase
by the Company at the option of the
Holder, if any.
6. Settlement date.
7. Issue price.
8. Agent's commission, determined as
provided in Section 2(a) of the
Distribution Agreement.
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9. Original Issue Discount, if any.
B. The Company will assign a CUSIP number to such
Book-Entry Note and will advise Summit by
facsimile transmission or other mutually
acceptable means of the information set forth in
Settlement Procedure "A" above, the name of such
Agent and the CUSIP number assigned to such
Book-Entry Note. The Company will notify the
Agent of such CUSIP number by telephone as soon
as practicable. Each such communication by the
Company shall constitute a representation and
warranty by the Company to Summit and the Agent
that (i) such Note is then, and at the time of
issuance and sale thereof will be, duly
authorized for issuance and sale by the Company,
and (ii) the Global Security representing such
Note will conform with the terms of the
Indenture pursuant to which such Note and Global
Security are issued.
C. Summit will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information
to DTC, which shall route such information to
such Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. Identification of such Note as a Fixed
Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related Regular Record Date
and amount of interest payable on such
Interest Payment Date.
4. CUSIP number of the Global Security
representing such Note.
5. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. The Indenture Trustee will complete and
authenticate the Global Security representing
such Note.
E. It is expected that DTC will credit such Note to
Summit's participant account at DTC.
F. Summit will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit such Note to Summit's
participant account and credit such Note to such
Agent's participant account and (ii) debit such
Agent's settlement account and credit
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Summit's settlement account for an amount equal
to the price of such Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty
by Summit to DTC that (a) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (b) Summit is
holding such Global Security pursuant to the MTN
Certificate Agreement.
G. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent for
an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. Summit will, upon confirming receipt of such
funds from the Agent, wire transfer to the
account of the Company maintained at [name of
bank] (for credit to E'town Corporation, Account
No. ___________) in immediately available funds
in the amount transferred to Summit in
accordance with Settlement Procedure "F".
J. Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to
the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent, as
agent, and accepted by the Company for settlement on the
first Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A. 11:00 A.M. on the sale date
B. 12:00 Noon on the sale date
C. 5:00 P.M. on the sale date
D. 3:00 P.M. on the sale date
E. 8:05 A.M. on the settlement date
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F-G 3:00 P.M. on the settlement date
H. 4:30 P.M. on the settlement date
I-J. 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00 Noon on the first Business
Day after the sale date with respect to Settlement Procedures "A" and "B",
respectively, and no later than 5:00 P.M. on the first Business Day after the
sale date, with respect to Settlement Procedure "C". Settlement Procedure "D"
shall occur no later than 3:00 P.M. on the last Business Day prior to the
settlement date. Settlement Procedures "H" and "I" are subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or canceled, the
Company will instruct Summit by no later than 12:00 Noon on the Business Day
immediately preceding the scheduled settlement date to deliver to DTC through
DTC's Participant Terminal System a cancellation message to such effect and
Summit will enter such message, by no later than 2:00 P.M. on such Business Day,
through DTC's Participation Terminal System.
Failure to
Settle: If Summit or the Agent fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F" or "G," Summit may upon the
approval of the Company deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Note to
Summit's participant account, provided that Summit's
participant account contains a principal amount of the
Global Security representing such Note that is at least
equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security,
Summit will xxxx such Global Security "canceled", make
appropriate entries in Summit's records and send such
canceled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not reassigned until the Book-Entry Notes
represented by such Global Security have matured or been
redeemed. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, Summit will
exchange such Global Security for another Global
Security, which shall represent the Book-Entry Notes
previously represented by the surrendered Global
Security with respect to which a withdrawal message has
not been processed and shall bear the CUSIP number of
the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
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Procedures "G" and "F", respectively. Thereafter, Summit
will deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than a
default by the Agent in the performance of its
obligations hereunder or under the Distribution
Agreement, then the Company will reimburse such Agent or
Summit, as applicable, on an equitable basis for the
loss of the use of funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Security, the Indenture Trustee will provide, in
accordance with Settlement Procedure "D," for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Summit will serve as registrar in connection with the Certificated
Notes.
Maturities: Each Certificated Note will mature on a date not less
than one year and not more than 30 years after the date
of delivery by the Company of such Note.
Price to
Public: Each Certificated Note will be issued at the percentage
of principal amount specified in the Prospectus relating
to the Notes.
Denominations: The denomination of any Certificated Note will be a
minimum of $1,000 or any amount in excess thereof which
is an integral multiple of $1,000.
Registration: Certificated Notes will be issued only in fully
registered form.
Interest: General. Interest on each Certificated Note will accrue
from and including the original issue date of, or the
last date to which interest has been paid on, such Note.
Each payment of interest on a Certificated Note will
include interest accrued to but excluding the Interest
Payment Date or the Maturity Date or, upon earlier
redemption, the Redemption Date, as the case may be.
Interest payable on the Maturity Date or the Redemption
Date of a Certificated Note will be payable to the
person to whom the principal of such Note is payable.
Record Dates. Unless otherwise set forth in the
applicable Pricing Supplement, the record dates with
respect to the Interest Payment Dates shall be the
Regular Record Dates.
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Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to "Settlement Procedures" below,
interest payments on Fixed Rate Certificated Notes will
be made semi-annually on [January 1 and July 1] and on
the Maturity Date or the Redemption Date; provided,
however, that in the case of a Fixed Rate Certificated
Note issued between a Regular Record Date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Regular Record Date.
Payments of
Principal
and Interest: Interest will be payable to the person and in whose name
a Certificated Note is registered at the close of
business on the Regular Record Date next preceding an
Interest Payment Date; provided, however, that, in the
case of a Certificated Note originally issued between a
Regular Record Date and an Interest Payment Date, the
first payment of interest will be made on the Interest
Payment Date following the next succeeding Regular
Record Date to the person in whose name such Note was
registered at the close of business on such next Regular
Record Date. Unless other arrangements are made
acceptable to the Company, all interest payments
(excluding interest payments made on the Maturity Date
or the Redemption Date) on a Certificated Note will be
made by check mailed to the person entitled thereto as
provided above. Summit will pay the principal amount of
each Certificated Note on the Maturity Date upon
presentation of such Certificated Note to Summit at the
principal corporate trust office of Summit in New York,
New York. Such payment, together with payment of
interest due on the Maturity Date, will be made from
funds deposited with Summit by the Company. Summit will
be responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law. Within
10 days following each Regular Record Date, the
Indenture Trustee will inform the Company of the total
amount of the interest payments to be made by the
Company on the next succeeding Interest Payment Date.
The Indenture Trustee will provide monthly to the
Company a list of the principal and interest to be paid
on Certificated Notes maturing in the next succeeding
month.
Settlement
Procedures: The settlement date with respect to any offer to
purchase Certificated Notes accepted by the Company will
be a date on or before the fifth Business Day next
succeeding the date of acceptance unless otherwise
agreed by the purchaser, the Indenture Trustee and the
Company and shall be specified upon acceptance of such
offer. The Company will instruct the Indenture Trustee
to effect delivery of each Certificated Note no later
than 1:00 P.M. (New York City time) on the settlement
date to the Presenting Agent (as defined under
"Preparation of Pricing Supplement" in Part III below)
for delivery to the purchaser.
Settlement
Procedures: For each offer to purchase a Certificated Note that is
accepted by the Company, the Presenting Agent will
provide (unless provided by the purchaser directly to
the
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Company) by telephone and facsimile transmission or
other mutually acceptable means the following
information to the Company:
1. Name in which such Note is to be registered (the
"Registered Owner").
2. Address of the Registered Owner and, if
different, address for payment of principal and
interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount.
5. Maturity Date.
6. The interest rate.
7. Interest Payment Dates.
8. Redemption provisions, if any, or provisions for
the repayment or repurchase by the Company at
the option of the Holder, if any.
9. Settlement date.
10. Issue price.
11. Agent's commission, determined as provided in
Section 2(a) of the Distribution Agreement.
The Presenting Agent will advise the Company of
the foregoing information (unless provided by the
purchaser directly to the Company) for each offer to
purchase a Certificated Note solicited by such Agent and
accepted by the Company in time for the Indenture
Trustee to prepare and authenticate the required
Certificated Note. Before accepting any offer to
purchase a Certificated Note to be settled in less than
three Business Days, the Company shall verify that the
Indenture Trustee will have adequate time to prepare and
authenticate such Note. After receiving from the
Presenting Agent the details for each offer to purchase
a Certificated Note that has been accepted by the
Company, the Company will, after recording the details
and any necessary calculations, provide appropriate
documentation to the Indenture Trustee, including the
information provided by the Presenting Agent necessary
for the preparation and authentication of such Note.
Note Deliveries
and Cash
Payments: Upon receipt of appropriate documentation and
instructions, the Company will cause the Indenture
Trustee to prepare and authenticate the pre-printed
4-ply
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Certificated Note packet containing the following
documents in forms approved by the Company, the
Presenting Agent and the Indenture Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Indenture Trustee.
Each Certificated Note shall be authenticated on the
settlement date therefor. The Indenture Trustee will
authenticate each Certificated Note and deliver it (with
the confirmation) to the Presenting Agent (and deliver
the stubs as indicated above), all in accordance with
written or electronic instructions (or oral instructions
confirmed in writing (which may be given by facsimile
transmission) on the next Business Day) from the
Company. Delivery by the Indenture Trustee of each
Certificated Note will be made in accordance with said
instructions against receipts therefor and in connection
with contemporaneous receipt by the Company from the
Presenting Agent on the settlement date in immediately
available funds of an amount equal to the issue price of
such Note less the Presenting Agent's commission.
Upon verification ("Verification") by the Presenting
Agent that a Certificated Note has been prepared and
properly authenticated by the Indenture Trustee and
registered in the name of the purchaser in the proper
principal amount and other terms in accordance with the
aforementioned confirmation, payment will be made to the
Company by the Presenting Agent the same day as the
Presenting Agent's receipt of the Certificated Note in
immediately available funds. Such payment shall be made
by the Presenting Agent only upon prior receipt by the
Presenting Agent of immediately available funds from or
on behalf of the purchaser unless the Presenting Agent
decides, at its option, to advance its own funds for
such payment against subsequent receipt of funds from
the purchaser.
Upon delivery of a Certificated Note to the Presenting
Agent, Verification by the Presenting Agent and the
giving of instructions for payment, the Presenting Agent
shall promptly deliver such Note to the purchaser. In
the event any Certificated Note is incorrectly prepared,
the Indenture Trustee shall promptly issue a replacement
Certificated Note in exchange for such incorrectly
prepared Note.
Failure
To Settle: If the Presenting Agent, at its own option, has advanced
its own funds for payment against subsequent receipt of
funds from the purchaser, and if the purchaser shall
fail to make payment for the Certificated Note on the
settlement date therefor, the Presenting Agent will
promptly notify the Indenture Trustee and the Company by
telephone, promptly confirmed in writing (but no later
than the next Business Day). In such event, the Company
shall promptly provide the Indenture Trustee with
appropriate documentation and instructions consistent
with these procedures for the return of the Certificated
Note to the Indenture Trustee and the Presenting Agent
will promptly return the Certificated Note to the
Indenture Trustee. Upon (i)
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confirmation from the Indenture Trustee in writing
(which may be given by facsimile transmission) that the
Indenture Trustee has received the Certificated Note and
upon (ii) confirmation from the Presenting Agent in
writing (which may be given by facsimile transmission)
that the Presenting Agent has not received payment from
the purchaser (the matters referred to in clauses (i)
and (ii) are referred to hereinafter as the
"Confirmations"), the Company will promptly pay to the
Presenting Agent an amount in immediately available
funds equal to the amount previously paid by the
Presenting Agent in respect of such Note. Assuming
receipt of the Certificated Note by the Indenture
Trustee and of the Confirmations by the Company, such
payment will be made on the settlement date, if
reasonably practical, and in any event not later than
the Business Day following the date of receipt of the
Certificated Note and Confirmations. If a purchaser
shall fail to make payment for the Certificated Note for
any reason other than the failure of the Presenting
Agent to provide the necessary information to the
Company as described above for settlement or to provide
a confirmation to the purchaser within a reasonable
period of time as described above or otherwise to
satisfy its obligation hereunder or in the Distribution
Agreement, and if the Presenting Agent shall have
otherwise complied with its obligations hereunder and in
the Distribution Agreement, the Company will reimburse
the Presenting Agent on an equitable basis for its loss
of the use of funds during the period when they were
credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Indenture
Trustee will void such Note, make appropriate entries in
its records and send such cancelled Note to the Company;
and upon such action, the Certificated Note will be
deemed not to have been issued, authenticated and
delivered.
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH BOOK-ENTRY NOTES AND
CERTIFICATED NOTES
Calculation
Of Interest: Fixed Rate Notes. Interest on Fixed Rate Notes
(including interest for partial periods) will be
calculated on the basis of a 360-day year of twelve
thirty-day months. (Examples of interest calculations
are as follows: The period from August 15, 1999 to
February 15, 2000 equals 6 months and 0 days, or 180
days; the interest payable equals 180/360 times the
annual rate of interest times the principal amount of
the Note. The period from September 17, 1999 to February
15, 2000 equals 4 months and 28 days, or 148 days; the
interest payable equals 148/360 times the annual rate of
interest times the principal amount of the Note.)
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Procedure
For Rate
Setting and
Posting: The Company and the Agents will discuss from time to
time the aggregate amount of, the issuance price of, and
the interest rates to be borne by, Notes that may be
sold as a result of the solicitation of offers by the
Agents. If the Company decides to set prices of, and
rates borne by, any Notes in respect of which the Agents
are to solicit offers (the setting of such prices and
rates to be referred to herein as "posting") or if the
Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance
of Offers: If the Company posts prices and rates as provided above,
each Agent as agent for and on behalf of the Company,
shall promptly accept offers received by the Agent to
purchase Notes at the prices and rates so posted,
subject to (i) any instructions from the Company
received by the Agent concerning the aggregate principal
amount of such Notes to be sold at the prices and rates
so posted or the period during which such posted prices
and rates are to be in effect, (ii) any instructions
from the Company received by each Agent changing or
revoking any posted prices and rates, (iii) compliance
with the securities laws of the United States and all
other jurisdictions and (iv) such Agent's right to
reject any such offer as provided below.
If the Company does not post prices and rates and an
Agent receives an offer to purchase Notes or, if while
posted prices and rates are in effect, the Agent
receives an offer to purchase Notes on terms other than
those posted by such Company, the Agent will promptly
advise the Company of each such offer other than offers
rejected by such Agent as provided below. The Company
will have the sole right to accept any such offer to
purchase Notes. The Company may reject any such offer in
whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase Notes
received by it in whole or in part.
Preparation
Of Pricing
Supplement: If any offer to purchase an Note is accepted by the
Company, the Company, with the approval of the Agent
that presented such offer (the "Presenting Agent"), will
prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note and will arrange to
have a copy electronically filed with the Commission in
accordance with the applicable paragraph of Rule 424
under the Act and the provision of Regulation S-T
thereunder and will supply at least 10 copies thereof
(or additional copies if requested) to the Presenting
Agent. The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of
such Note.
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In each instance that a Pricing Supplement is prepared,
the Agents will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will
be destroyed.
Procedures
For Rate
Changes: When the Company has determined to change the interest
rates of Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend
solicitation of offers. Each Agent will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the
Agents of the new interest rates, the Agents may resume
solicitation of offers. Until such time only
"indications of interest" may be recorded.
Suspension of
Solicitation,
Amendment or
Supplement of
Prospectus: The Company may instruct the Agents to suspend at any
time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt
of such instructions from the Company, the Agents will
forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company
has advised them that such solicitation may be resumed.
If the Company decides to amend or supplement the
Registration Statement (as defined in Section 1(c) of
the Distribution Agreement) or the Prospectus (except
for a supplement relating to an offering of securities
other than the Notes), it will promptly advise the
Agents and the Indenture Trustee and will furnish the
Agent and the Indenture Trustee with the proposed
amendment or supplement in accordance with the terms of,
and its obligations under, the Distribution Agreement.
The Company will, consistent with such obligations,
promptly advise each Agent and the Indenture Trustee
whether orders outstanding at the time each Agent
suspends solicitation may be settled and whether copies
of such Prospectus and Prospectus Supplement as in
effect at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made in
the event that the Company determines that such orders
may not be settled or that copies of such Prospectus,
Prospectus Supplement and Pricing Supplement may not be
so delivered.
The Company will file with the Commission for filing
therewith any supplement to the Prospectus relating to
the Notes, provide the Agent with copies of any such
supplement, and confirm to the Agents that such
supplement has been filed with the Commission pursuant
to the applicable paragraph of Rule 424.
Confirmation: For each offer to purchase a Note solicited by an Agent
and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the
purchaser,
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with a copy to the Company, setting forth the details
set forth above and delivery and payment instructions.
Trustee/Paying
Agent Not to
Risk Funds: Nothing herein shall be deemed to require the Indenture
Trustee/Paying Agent to risk or expend its own funds in
connection with any payment to the Company, DTC, the
Agents or the purchaser or a holder, it being understood
by all parties that payments made by the Indenture
Trustee/Paying Agent to the Company, DTC, the Agent or a
purchaser or holder shall be made only to the extent
that funds are provided to the Indenture Trustee/Paying
Agent for such purpose.
Authenticity
of Signatures: The Company will cause the Indenture Trustee to furnish
the Agents from time to time with the specimen
signatures of each of the Indenture Trustee's officers,
employees or agents who has been authorized by the
Indenture Trustee to authenticate Notes, but the Agents
will have no obligation or liability to the Company or
the Indenture Trustee in respect of the authenticity of
the signature of any officer, employee or agent of the
Company or the Indenture trustee on any such Note.
Payment of
Expenses: Each Agent shall forward to the Company, on a monthly
basis, a statement of the reasonable out-of-pocket
expenses incurred by such Agent during that month which
are reimbursable to it pursuant to the terms of the
Distribution Agreement. The Company will remit payment
to the Agent currently on a monthly basis.
Delivery of
Prospectus: A copy of the Prospectus, Prospectus Supplement and
Pricing Supplement relating to a Note must accompany or
precede the earliest of any written offer of such Note,
confirmation of the purchase of such Note or payment for
such Note by its purchaser. If notice of a change in the
terms of the Notes is received by an Agent between the
time an order for an Note is placed and the time written
confirmation thereof is sent by such Agent to a customer
or his agent, such confirmation shall be accompanied by
a Prospectus, Prospectus Supplement and Pricing
Supplement setting forth the terms in effect when the
order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement of Prospectus"
above, each Agent will deliver a Prospectus, Prospectus
Supplement and Pricing Supplement as herein described
with respect to each Note sold by it.
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46
EXHIBIT C
TERMS AGREEMENT
E'town Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention:
Subject in all respects to the terms and conditions of the Distribution
Agreement (the "Distribution Agreement"), dated _________ __, 199_, among X.X.
Xxxxxxx & Sons, Inc., Xxxx Xxxxx Xxxx Xxxxxx, Incorporated and E'town
Corporation (the "Company"), the undersigned agrees to purchase the following
principal amount of the Company's ______________ Medium-Term Notes (the
"Notes"):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount [plus accrued interest from , 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor Method of Payment:
Modification, if any, in the requirements to deliver the documents specified in
Section 6(b) of the Distribution Agreement:
Period during which additional Notes may not be sold pursuant to Section 4(m) of
the Distribution Agreement:
Book-Entry Notes or Certificated Notes:
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47
This Agreement shall be governed by and construed in accordance with
the laws of New Jersey.
[Insert name of Purchaser(s)]
By___________________________
Title:
Accepted: , 199_
E'TOWN CORPORATION
By___________________________
Title:
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