UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

 Date of report (Date of earliest event reported): December 20, 2018
 
SOUTH JERSEY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
 
New Jersey	 	1-6364	 	22-1901645	
(State or other jurisdiction
of incorporation)	 	(Commission File Number)	 	(I.R.S. Employer 
Identification No.)	
 
1 South Jersey Plaza, Folsom, NJ 08037
(Address of principal executive offices) (Zip Code)
 
(609) 561-9000
(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act or Rule 12b-2 of the Exchange Act)
 
Emerging growth company o 
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o  

 
Item 1.01. Entry into a Material Definitive Agreement.
 
On December 20, 2018, Elizabethtown Gas Company (the “Company”), an indirect wholly-owned subsidiary of South Jersey Industries, Inc. (“ SJI ”), issued $530 million aggregate principal amount of its First Mortgage Bonds, Series 2018A (the “ Series 2018A Bonds ”), which were issued in five Tranches as follows: (a) 4.02% First Mortgage Bonds, Series 2018A-1, due December 20, 2028 in the aggregate principal amount of $50,000,000 (the “ Series 2018A-1 Bonds ”); (b) 4.22% First Mortgage Bonds, Series 2018A-2, due December 20, 2033 in the aggregate principal amount of $55,000,000 (the “ Series 2018A-2 Bonds ”); (c) 4.29% First Mortgage Bonds, Series 2018A-3, due December 20, 2038 in the aggregate principal amount of $150,000,000 (the “ Series 2018A-3 Bonds ”); (d) 4.37% First Mortgage Bonds, Series 2018A-4, due December 20, 2048 in the aggregate principal amount of $200,000,000 (the “ Series 2018A-4 Bonds ”); and (e) 4.52% First Mortgage Bonds, Series 2018A-5, due December 20, 2058 in the aggregate principal amount of $75,000,000 (the “ Series 2018A-5 Bonds ”).
 
The Series 2018A Bonds were issued under that First Mortgage Indenture dated as of July 2, 2018 (the “ Indenture ”) between the Company and Wilmington Trust, National Association, as Trustee (the “ Trustee ”), as supplemented by that First Supplement dated as of December 20, 2018 between the Company and the Trustee (the “ First Supplement ”), pursuant to a Bond Purchase Agreement dated as of December 20, 2018 between the Company and the purchasers named therein (the “ Bond Purchase Agreement ”).
 
The Series 2018A Bonds of the respective Tranches bear interest and are payable at maturity as follows:
 
 Tranche of Bond	Aggregate Principal Amount	Interest Rate	Maturity Date	
Series 2018A-1	$50,000,000	4.02%	December 20, 2028	
Series 2018A-2	$55,000,000	4.22%	December 20, 2033	
Series 2018A-3	$150,000,000	4.29%	December 20, 2038	
Series 2018A-4	$200,000,000	4.37%	December 20, 2048	
Series 2018A-5	$75,000,000	4.52%	December 20, 2058	
 
Interest on the Series 2018A Bonds is payable semiannually on June 20 and December 20 of each year, commencing June 20, 2019. The entire unpaid principal amount of each Tranche becomes due and payable on the respective dates set forth above.
 
The Company may prepay, at any time or from time to time, all or any portion of the Series 2018A Bonds, in an amount not less than 5% of the aggregate principal amount of all of the Series 2018A Bonds then outstanding in the case of a partial prepayment, together with interest accrued thereon to the date of such prepayment as well as a “make-whole amount” to be calculated as provided in the Bond Purchase Agreement.
 
The proceeds from the sale of the Series 2018A Bonds will used to repay short-term indebtedness under the Company’s $530,000,000 364-day term loan Credit Agreement dated as of June 26, 2018 among the Company, SJI, the lenders party thereto and Bank of America, N.A., as Administrative Agent.
 
The Indenture provides for the issuance by the Company from time to time of bonds, notes or other evidences of indebtedness (“ Bonds ”) that are secured by a lien on substantially all of the operating properties and franchises of the Company (other than excepted property, as set forth in the Indenture). The Indenture contains provisions subjecting after-acquired property (other than excepted property) to the lien thereof and limits the ability of the Company to create liens, other than the lien created by the Indenture, on its properties.

 
The Indenture provides that Bonds may be issued, subject to the provisions of the Indenture, in principal amounts equal to (a) 70% of value of property (calculated as the lower of Cost or Fair Value, as such terms are defined in the Indenture) subject to the lien of the Indenture, which value of property cannot then be used as the basis for taking other actions under the Indenture, such as issuing additional Bonds, (b) the amount of cash deposited with the Trustee for the purpose of obtaining the authentication of such additional Bonds or (c) the aggregate principal amount of previously issued Bonds that have been retired and not previously been used by the Company for any purpose under the Indenture. The Indenture also contains provisions for having property released from the lien of the Indenture.
 
The Indenture provides for customary events of default, which include (subject in certain cases to customary grace and cure periods), among others, nonpayment of principal or interest and the breach of other agreements in the Indenture. Generally, if an event of default occurs and is not cured within the time period specified, the Mortgage Trustee or the holders of at least 25% in principal amount of the Bonds then outstanding may declare all the outstanding Bonds to be due and payable immediately.
 
No indebtedness was created in connection with entering into the Indenture. The initial issuance of Bonds under the Indenture was the Series 2018A Bonds. In connection with the issuance of the Series 2018A Bonds, the Company and Trustee entered into the First Supplement on December 20, 2018, which authorized the issuance of up to an aggregate of $530 million of Series 2018A Bonds in five Tranches as described above. The First Supplement also made certain changes to the Indenture regarding events of default and amounts payable in the event Bonds become due and payable by acceleration prior to their scheduled payment dates.
 
A copy of the Indenture, the First Supplement (including forms of each of the five Tranches of Series 2018A Bonds), and the Bond Purchase Agreement are filed as Exhibits 4.1, 4.2 and 10.1, respectively, to this Current Report on Form 8-K and are incorporated by reference into this Item 1.01. The foregoing summaries of the Indenture, the First Supplement (including the forms of each of the five Tranches of Series 2018A Bonds) and the Bond Purchase Agreement are qualified in their entirety by reference to the text of such documents filed herewith.
 
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

 
Item 9.01. Financial Statements and Exhibits.
 
(d) Exhibits
 
4.1	First Mortgage Indenture, dated as of July 2, 2018, between Elizabethtown Gas Company and Wilmington Trust, National Association, as Trustee.	
 	 	
4.2	First Supplemental Indenture, dated as of December 20, 2018, between Elizabethtown Gas Company and Wilmington Trust, National Association, as Trustee, including forms of the Series 2018A-1 Bonds, the Series 2018A-2 Bonds, the Series 2018A-3 Bonds, the Series 2018A-4 Bonds and the Series 2018A-5 Bonds.	
 	 	
10.1  	Bond Purchase Agreement, dated as of December 20, 2018, between Elizabethtown Gas Company and the purchasers listed therein.	

 	 	 	

SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 	SOUTH JERSEY INDUSTRIES, INC.	

 	 
 	
Dated:  December 26, 2018	By: 	/s/ Ann T. Anthony  	
 	Name: Ann T. Anthony
Title: Vice President and Treasurer	

 	 	 	

Exhibit 4.1
Execution Copy
*This Instrument Grants a Security Interest by a Public Utility
 
 	This instrument was prepared by	
 	 	
 	/s/ Ira G. Megdal	
 	Ira G. Megdal, Esquire	
 
ELIZABETHTOWN GAS COMPANY
(Formerly known as ETG ACQUISITION CORP.)
TO
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Trustee)
_______________
First Mortgage Indenture
Dated as of July 2, 2018

This Instrument Contains After-Acquired Property Provisions

 
ELIZABETHTOWN GAS COMPANY
Reconciliation and Tie between Trust Indenture Act of 1939 and
 Indenture, dated as of July 2, 2018 
 
Trust Indenture Act Section	Indenture Section(s)	
§310(a)(1)	 	11.9	
 	(a)(2)	11.9	
 	(a)(3)	11.14(B)	
 	(a)(4)	Not applicable	
 	(b)	11.8, 11.10	
§311(a)	 	11.13	
 	(b)	11.13	
 	(c)	Not applicable	
§312(a)	 	12.1	
 	(b)	12.1	
 	(c)	12.1	
§313(a)	 	12.3	
 	(b)	12.3	
 	(c)	12.3	
 	(d)	12.3	
§314(a)	 	12.1, 6.10	
 	(b)	6.8	
 	(c)(1)	1.5	
 	(c)(2)	1.5	
 	(c)(3)	1.6	
 	(d)	4.2, 6.7(b),
8.3, 8.4, 8.9	
 	(e)	1.5	
§315(a)	 	11.1, 11.3	
 	(b)	11.2	
 	(c)	11.1	
 	(d)	11.1	
 	(e)	10.18	
§316(a)	 	10.16	
 	(a)(1)(A)	10.2, 10.17	
 	(a)(1)(B)	10.17	
 	(a)(2)	Not applicable	
 	(b)	10.12	
 	(c)	1.7	
§317(a)(1)	 	10.6	
 	(a)(2)	10.9	
 	(b)	6.3	
§318(a)	 	1.10	
 
 	i	 	

TABLE OF CONTENTS
Recitals of the Company
Granting Clauses
Article 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	5	
Section 1.1 General Definitions	5	
Section 1.2 Funded Property; Funded Cash	19	
Section 1.3 Property Additions; Cost	21	
Section 1.4 Net Earnings Certificate; Annual Interest Requirements	23	
Section 1.5 Compliance Certificates and Opinions	24	
Section 1.6 Content and Form of Documents Delivered to Trustee	25	
Section 1.7 Acts of Holders	27	
Section 1.8 Notices, Etc. to Trustee and Company	28	
Section 1.9 Notice to Holders of Securities; Waiver	29	
Section 1.10 Conflict with Trust Indenture Act	30	
Section 1.11 Effect of Headings and Table of Contents	30	
Section 1.12 Successors and Assigns	30	
Section 1.13 Separability Clause	30	
Section 1.14 Benefits of Indenture	30	
Section 1.15 Governing Law	31	
Section 1.16 Legal Holidays	31	
Section 1.17 Investment of Cash Held by Trustee	31	
Section 1.18 Foreign Account Tax Compliance Act (FATCA)	31	
Section 1.19 Force Majeure	32	
Section 1.20 Waiver of Jury Trial	32	
Article 2 SECURITY FORMS	32	
Section 2.1 Forms Generally	32	
Section 2.2 Form of Trustee’s Certificate of Authentication	33	
Article 3 THE SECURITIES	33	
Section 3.1 Amount Unlimited; Issuable in Series	33	
Section 3.2 Denominations	36	
Section 3.3 Execution, Dating, Certificate of Authentication	36	
Section 3.4 Temporary Securities	37	
Section 3.5 Registration, Registration of Transfer and Exchange	38	
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities	39	
Section 3.7 Payment of Interest; Interest Rights Preserved	40	
Section 3.8 Persons Deemed Owners	41	
Section 3.9 Cancellation by Security Registrar	42	
Section 3.10 Computation of Interest; Usury Not Intended	42	
Section 3.11 Payment to Be in Proper Currency	43	
Section 3.12 CUSIP Numbers	43	
Section 3.13 Naming Series of Securities	43	
Article 4 ISSUANCE OF SECURITIES	43	
Section 4.1 General	43	
Section 4.2 Issuance of Securities on the Basis of Property Additions	46	
Section 4.3 Issuance of Securities on the Basis of Retired Securities	48	
Section 4.4 Issuance of Securities on the Basis of Deposit of Cash	49	
 
 	ii	 	

 
Article 5 REDEMPTION OF SECURITIES	49	
Section 5.1 Applicability of Article	49	
Section 5.2 Election to Redeem; Notice to Trustee	50	
Section 5.3 Selection of Securities to Be Redeemed	50	
Section 5.4 Notice of Redemption; Deposit	50	
Section 5.5 Securities Payable on Redemption Date	52	
Section 5.6 Securities Redeemed in Part	52	
Article 6 COVENANTS	52	
Section 6.1 Payment of Securities; Lawful Possession; Maintenance of Lien	52	
Section 6.2 Maintenance of Office or Agency	53	
Section 6.3 Money for Securities Payments to Be Held in Trust	53	
Section 6.4 Corporate Existence	55	
Section 6.5 Maintenance of Properties	55	
Section 6.6 Payment of Taxes; Discharge of Liens	55	
Section 6.7 Insurance	56	
Section 6.8 Recording, Filing, etc.	59	
Section 6.9 Waiver of Certain Covenants	59	
Section 6.10 Annual Officer’s Certificate as to Compliance	60	
Article 7 [INTENTIONALLY OMITTED]	60	
Article 8 POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY	60	
Section 8.1 Quiet Enjoyment	60	
Section 8.2 Dispositions without Release	60	
Section 8.3 Release of Funded Property	61	
Section 8.4 Release of Property Not Constituting Funded Property	65	
Section 8.5 Release of Minor Properties	66	
Section 8.6 Withdrawal or Other Application of Funded Cash	67	
Section 8.7 Release of Property Taken by Eminent Domain, etc	69	
Section 8.8 Disclaimer or Quitclaim	70	
Section 8.9 Miscellaneous	70	
Article 9 SATISFACTION AND DISCHARGE	72	
Section 9.1 Satisfaction and Discharge of Securities	72	
Section 9.2 Satisfaction and Discharge of Indenture	74	
Section 9.3 Application of Trust Money	74	
Article 10 EVENTS OF DEFAULT; REMEDIES	75	
Section 10.1 Events of Default	75	
Section 10.2 Acceleration of Maturity; Rescission and Annulment	76	
Section 10.3 Entry upon Mortgaged Property	77	
Section 10.4 Power of Sale; Suits for Enforcement	78	
Section 10.5 Incidents of Sale	78	
Section 10.6 Collection of Indebtedness and Suits for Enforcement by Trustee	79	
Section 10.7 Application of Money Collected	80	
Section 10.8 Receiver	81	
Section 10.9 Trustee May File Proofs of Claim	81	
Section 10.10 Trustee May Enforce Claims without Possession of Securities	81	
Section 10.11 Limitation on Suits	82	
Section 10.12 Unconditional Right of Holders to Receive Principal, Premium and Interest	82	
Section 10.13 Restoration of Rights and Remedies	82	
Section 10.14 Rights and Remedies Cumulative	83	
Section 10.15 Delay or Omission Not Waiver	83	
Section 10.16 Control by Holders of Securities	83	
Section 10.17 Waiver of Past Defaults	83	
Section 10.18 Undertaking for Costs	84	
Section 10.19 Waiver of Appraisement and Other Laws	84	
 
 	iii	 	

 
Article 11 THE TRUSTEE	85	
Section 11.1 Certain Duties and Responsibilities	85	
Section 11.2 Notice of Defaults	86	
Section 11.3 Certain Rights of Trustee	86	
Section 11.4 Not Responsible for Recitals or Issuance of Securities or Application of Proceeds	87	
Section 11.5 May Hold Securities	88	
Section 11.6 Money Held in Trust	88	
Section 11.7 Compensation and Reimbursement	88	
Section 11.8 Disqualification; Conflicting Interests	89	
Section 11.9 Corporate Trustee Required; Eligibility	89	
Section 11.10 Resignation and Removal; Appointment of Successor	90	
Section 11.11 Acceptance of Appointment by Successor	91	
Section 11.12 Merger, Conversion, Consolidation or Succession to Business	92	
Section 11.13 Preferential Collection of Claims against Company	92	
Section 11.14 Co-trustees and Separate Trustees	93	
Section 11.15 Appointment of Authenticating Agent	94	
Section 11.16 Limitation on Duty of Trustee in Respect of Mortgaged Property; Indemnification	95	
Section 11.17 No Liability for Clean-up of Hazardous Materials	96	
Article 12 LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY	96	
Section 12.1 Lists of Holders	96	
Section 12.2 Preservation of Information; Communications to Holders	97	
Section 12.3 Reports by Trustee	97	
Section 12.4 Reports by Company	97	
Article 13 CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER	98	
Section 13.1 Company May Consolidate, etc., Only on Certain Terms	98	
Section 13.2 Successor Corporation Substituted	99	
Section 13.3 Extent of Lien Hereof on Property of Successor Corporation	99	
Section 13.4 Release of Company upon Conveyance or Other Transfer	100	
Section 13.5 Merger into Company; Extent of Lien Hereof	100	
 
 	iv	 	

 
Article 14 Supplemental Indentures	100	
Section 14.1 Supplemental Indentures Without Consent of Holders	100	
Section 14.2 Supplemental Indentures with Consent of Holders	102	
Section 14.3 Execution of Supplemental Indentures	104	
Section 14.4 Effect of Supplemental Indentures	104	
Section 14.5 Conformity with Trust Indenture Act	104	
Section 14.6 Reference in Securities to Supplemental Indentures	104	
Section 14.7 Modification Without Supplemental Indenture	104	
Article 15 MEETINGS OF HOLDERS; ACTION WITHOUT MEETING	105	
Section 15.1 Purposes for Which Meetings May Be Called	105	
Section 15.2 Call, Notice and Place of Meetings	105	
Section 15.3 Persons Entitled to Vote at Meetings	106	
Section 15.4 Quorum; Action	106	
Section 15.5 Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment of Meetings	107	
Section 15.6 Counting Votes and Recording Action of Meetings	108	
Section 15.7 Action Without Meeting	108	
Article 16 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS	108	
Section 16.1 Liability Solely Corporate	108	
 
 	v	 	

FIRST MORTGAGE INDENTURE (this “Indenture”), dated as of July 2, 2018, between ELIZABETHTOWN GAS COMPANY , a corporation organized and subsisting under the laws of the State of New Jersey (the “Company” ), and  Wilmington Trust, National Association , a national banking association, as Trustee (the “Trustee” ).
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture, as originally executed and delivered, to provide for the issuance from time to time of its bonds, notes or other evidences of indebtedness (herein called the “Securities” ), to be issued in one or more series as contemplated herein, and to provide security for the payment of the principal of and premium, if any, and interest, if any, on the Securities; and all acts and proceedings required by law and the Company’s certificate of incorporation and bylaws to make this Indenture a valid agreement of the Company and a binding mortgage for the security of the Securities have been performed. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires, capitalized terms used herein shall have the meanings assigned to them in Article 1 of this Indenture.
Granting Clauses
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, in consideration of the premises and the subsequent purchase of Securities by the Holders thereof, and in order to secure the payment of the principal of and premium, if any, and interest, if any, on all Securities from time to time Outstanding and the performance of the covenants therein and herein contained and to declare the terms and conditions on which such Securities are secured, the Company hereby grants, bargains, sells, conveys, assigns, transfers, mortgages, pledges, sets over and confirms to the Trustee, and grants to the Trustee a security interest in, all property, rights, privileges and franchises of the Company of every kind and description, real, personal or mixed, tangible or intangible, whether now owned or hereafter acquired by the Company, wherever located, except for any Excepted Property, including the following (subject, however, to the terms and conditions set forth in this Indenture):
 	I.	FRANCHISES	
All and singular, the franchises, grants, permits, immunities, privileges and rights of the Company owned and held by it at the date of the execution hereof or hereafter acquired, in each case for the construction, maintenance, and operation of the gas plants and systems in the Service Territory now or hereafter subject to the Lien hereof, as well as all certificates, franchises, grants, permits, immunities, privileges, and rights of the Company used or useful in the operation of the property now or hereafter mortgaged hereunder, including all and singular the franchises, grants, permits, immunities, privileges, and rights of the Company granted by the governing authorities of any municipalities or other political subdivisions and all renewals, extensions and modifications of said certificates, franchises, grants, permits, privileges, and rights or any of them.
 	1	 	

 
 	II.	GAS DISTRIBUTION SYSTEMS AND RELATED PROPERTY	
All gas generating plants, gas storage plants and gas manufacturing plants of the Company, all the buildings, structures, generating and purifying apparatus, holders, engines, boilers, benches, tanks, instruments, appliances, apparatuses, facilities, machinery, fixtures, and all other property used or provided for use in the generation, manufacturing and purifying of gas, together with the land on which the same are situated, in each case that is owned by the Company, and all other lands and easements, rights-of-way, permits, privileges, and sites forming a part of such plants or any of them or occupied, enjoyed or used in connection therewith, in each case located in the Service Territory and owned by the Company or to the extent of the Company’s rights therein.
All gas distribution or gas transmission systems of the Company, all buildings, structures, generating and purifying apparatus, holders, engines, boilers, benches, tanks, pipe lines, connections, service pipes, meters, conduits, tools, instruments, appliances, apparatus, facilities, machinery, fixtures, and all other property used or provided for use in the construction, maintenance, repair or operations of such distribution or transmission systems, together with all the certificates, rights, privileges, rights-of-way, franchises, licenses, easements, grants, liberties, immunities, permits of the Company, howsoever conferred or acquired, under, over, or upon any private property or any public streets or highways within as well as without the corporate limits of any municipal corporation, in each case located in or with respect to the Service Territory and owned by the Company or to the extent of the Company’s rights therein.
 	III.	GAS SUPPLY CONTRACTS	
All of the Company’s right, title and interest in and under all contracts, licenses or leases for the purchase of gas, either in effect at the date of execution hereof or hereafter made and any extension or renewal thereof.
 	IV.	ADDITIONAL PROPERTY	
Any and all property, real, personal or mixed, including Excepted Property, that may, from time to time hereafter, by delivery or by writing for the purposes hereof be in any way subjected to the Lien hereof or be expressly conveyed, mortgaged, assigned, transferred, deposited or pledged by the Company or by anyone in its behalf or with its consent, to and with the Trustee, which is hereby authorized to receive the same at any and all times as and for additional security.
 	V.	EXCEPTED PROPERTY	
Expressly excepting and excluding, however, from the Lien of this Indenture all right, title and interest of the Company in and to the following property, whether now owned or hereafter acquired (herein sometimes called “ Excepted Property ”):
 
(a)       all cash on hand or in banks or other financial institutions, cash equivalents, deposit accounts, shares of stock, interests in general or limited partnerships or limited liability entities, bonds, notes, other evidences of indebtedness and other securities, of whatsoever kind and nature, not hereafter paid or delivered to, deposited with or held by the Trustee hereunder or required by the express terms of this Indenture so to be;
 	2	 	

(b)       all contracts (other than gas supply contracts referred to in granting Clause III above), leases, operating agreements and other agreements of whatsoever kind and nature; all contract rights, bills, notes and other instruments and chattel paper (except to the extent that any of the same constitute securities, in which case they are separately excepted from the Lien of this Indenture under clause (a) above); all revenues, income and earnings, all accounts, accounts receivable and unbilled revenues, and all rents, tolls, issues, product and profits, claims, credits, demands and judgments; all governmental and other licenses, permits, franchises, consents and allowances (except to the extent that any of the same are specifically described in Granting Clause I above, in which case they are included within the Lien of this Indenture); and all patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, domain names, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(c)       all gas and by-products thereof, materials, supplies, merchandise, goods and appliances held for the purpose of sale in the ordinary course of business; and all fuel, materials, supplies and similar personal property which is consumable in its use in the operation of the plants or systems of the Company;
(d)       all automobiles, buses, trucks, truck cranes, tractors, trailers and similar vehicles and movable equipment; all rolling stock, rail cars and other railroad equipment; all vessels, boats, barges and other marine equipment; all airplanes, helicopters, aircraft engines and other flight equipment; all parts, accessories and supplies used in connection with any of the foregoing;
(e)       all goods, stock in trade, wares, merchandise and inventory held for the purpose of sale or lease in the ordinary course of business; all materials, supplies, inventory and other items of personal property which are consumable (otherwise than by ordinary wear and tear) in their use in the operation of the Mortgaged Property; all fuel, whether or not any such fuel is in a form consumable in the operation of the Mortgaged Property, including separate components of any fuel in the forms in which such components exist at any time before, during or after the period of the use thereof as fuel; all hand and other portable tools and equipment; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes or are otherwise not necessary for the operation or maintenance of the facilities, machinery, equipment or fixtures described or referred to Granting Clause II above;
(f)       all property, real or personal, located in Northampton County, Pennsylvania;
(g)       all property which is the subject of a lease agreement designating the Company as lessee and all right, title and interest of the Company in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as security;
(h)       all gas meters and related equipment; and
 	3	 	

(i)       all property, real, personal or mixed, acquired by the Company for the purpose of environmental remediation of such property;
provided, however, that, subject to the provisions of Section 13.3, (x) if, at any time after the occurrence of an Event of Default that is continuing, the Trustee, or any separate trustee or co-trustee appointed under Section 11.14 or any receiver appointed pursuant to Section 10.8 or otherwise, shall have entered into possession of all or substantially all of the Mortgaged Property, all the Excepted Property described or referred to in the foregoing clauses (c), (d) and (e), then owned or held or thereafter acquired by the Company, to the extent that the same is used in connection with, or otherwise relates or is attributable to, the Mortgaged Property, shall immediately, and, in the case of any Excepted Property described or referred to in clause (g), to the extent that the same is used in connection with, or otherwise relates or is attributable to, the Mortgaged Property, upon demand of the Trustee or such other trustee or receiver, become subject to the Lien of this Indenture to the extent not prohibited by law or by the terms of any other Lien on such Excepted Property, and the Trustee or such other trustee or receiver may, to the extent not prohibited by law or by the terms of any such other Lien (and subject to the rights of the holders of all such other Liens), at the same time likewise take possession thereof, and (y) whenever all Events of Default shall have been cured and the possession of all or substantially all of the Mortgaged Property shall have been restored to the Company, such Excepted Property shall again be excepted and excluded from the Lien hereof to the extent set forth above; it being understood that the Company may, however, pursuant to Granting Clause IV, make subject to the Lien of this Indenture any Excepted Property, whereupon the same shall cease to be Excepted Property;
SUBJECT, HOWEVER, to (a) Liens existing at the date of the execution and delivery of this Indenture, as originally executed and delivered, and (b) any Permitted Liens.
TO HAVE AND TO HOLD all such property, real, personal and mixed, unto the Trustee, its successors in trust and their assigns forever; and
IN TRUST, NEVERTHELESS, for the equal and ratable benefit and security of the Holders from time to time of Outstanding Securities as more fully set forth herein; and
PROVIDED, HOWEVER, that the right, title and interest of the Trustee in and to the Mortgaged Property shall cease, terminate and become void in accordance with, and subject to the conditions set forth in, Article 9 or Article 14 hereof, and if, thereafter, the principal of and premium, if any, and interest, if any, on the Securities shall have been paid to the Holders thereof, or shall have been paid to the Company pursuant to Section 6.3 hereof, then and in that case this Indenture shall terminate, and the Trustee shall execute and deliver to the Company such instruments, reasonably acceptable in form to the Trustee, as the Company shall require to evidence such termination; otherwise this Indenture, and the estate and rights hereby granted, shall be and remain in full force and effect; and
IT IS HEREBY COVENANTED AND AGREED by and between the Company and the Trustee that all the Securities are to be authenticated and delivered, and that the Mortgaged Property is to be held, subject to the further covenants, conditions and trusts hereinafter set forth, and the Company hereby covenants and agrees to and with the Trustee, for the benefit of Holders from time to time, as follows:
 	4	 	

Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 General Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a)                the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b)               all terms used herein without definition which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c)                all terms used herein without definition which are defined in the Uniform Commercial Code as in effect in any jurisdiction in which any portion of the Mortgaged Property is located shall have the meanings assigned to them therein with respect to such portion of the Mortgaged Property;
(d)               all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States; and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation or, at the election of the Company from time to time, at the date of the execution and delivery of this Indenture, as originally executed and delivered;  provided ,  however , that in determining generally accepted accounting principles applicable to the Company, effect shall be given, to the extent required, to any order, rule or regulation of any administrative agency, regulatory authority or other governmental body having jurisdiction over the Company;
(e)                the words “including,” “include,” and “includes” shall be deemed to be followed by the words “without limitation”; and
(f)                the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Accountant” means a Person engaged in the accounting profession or otherwise qualified to pass on accounting matters (including, but not limited to, a Person certified or licensed as a public accountant, whether or not then engaged in the public accounting profession), which Person, unless required to be Independent, may be an employee or Affiliate of the Company.
“Act,” when used with respect to any Holder of a Security, has the meaning specified in Section 1.7.
 	5	 	

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”  when used with respect to any specified Person means the power to direct generally the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms  “controlling”  and  “controlled”  have meanings correlative to the foregoing.
“Annual Interest Requirements” means the amount calculated in accordance with Section 1.4(b).
“Authenticating Agent” means any Person (other than the Company or an Affiliate of the Company) authorized by the Trustee to act on behalf of the Trustee to authenticate the Securities of one or more series.
“Authorized Officer” means the President, any Vice President, the Treasurer or the Corporate Secretary of the Company, or any other duly authorized officer, agent or attorney-in-fact of the Company named in an Officer’s Certificate signed by any of such corporate officers.
“Authorized Publication” means a newspaper or financial journal of general circulation, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays; or, in the alternative, shall mean such form of communication as may have come into general use for the dissemination of information of import similar to that of the information specified to be published by the provisions hereof. In the event that successive weekly publications in an Authorized Publication are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or in different Authorized Publications. In case, by reason of the suspension of publication of any Authorized Publication, or by reason of any other cause, it shall be impractical without unreasonable expense to make publication of any notice in an Authorized Publication as required by this Indenture, then such method of publication or notification as shall be made with the approval of the Trustee shall be deemed the equivalent of the required publication of such notice in an Authorized Publication.
“Authorized Purposes” means the authentication and delivery of Securities, the release of property and/or the withdrawal of cash under any of the provisions of this Indenture.
“Board of Directors” means either the board of directors of the Company or any committee thereof duly authorized to act in respect of matters relating to this Indenture.
“Board Resolution” means a copy of a resolution, or written consent in lieu thereof, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“BPU” means the New Jersey Board of Public Utilities or any successor agency.
“Business Day,” when used with respect to a Place of Payment or any other particular location specified in the Securities or this Indenture, means any day, other than a Saturday or Sunday, which is not a day on which banking institutions or trust companies in such Place of Payment or other location are generally authorized or required by law, regulation or executive order to remain closed, except as may be otherwise specified as contemplated by Section 3.1.
 	6	 	

“CERCLA” has the meaning specified in Section 11.17.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the United States Securities and Exchange Commission or, if at any time after the date of the execution and delivery of this Indenture, as originally executed and delivered, such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body, if any, performing such duties at such time.
“Company” means Elizabethtown Gas Company until a Successor Corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such Successor Corporation.
“Company Order” or “Company Request” means a written order or request signed in the name of the Company by an Authorized Officer and delivered to the Trustee.
“Corporate Trust Office” means the designated office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of the execution and delivery of this Indenture, as originally executed and delivered, is located at 1100 North Market Street, Wilmington, Delaware 19890,  Attention: Marie McMullen - Institutional Client Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” means a corporation, limited liability company, association, company, joint stock company or business trust.
“Cost” with respect to Property Additions has the meaning specified in Section 1.3.
“CPI” means the Consumer Price Index for New York-Newark-Jersey City (CPI-U), All-Items for all Urban Consumers, 1982-1984 Base, published by the United States Department of Labor, or, if such index is no longer published or its method of computation is substantially modified, a substitute index published by the United States Government or by a reputable publisher of financial or economic statistics that will fairly and reasonably reflect the same or substantially the same information as the discontinued or modified index selected by the Company.
“Defaulted Interest” has the meaning specified in Section 3.7.
“Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 10.2. “Interest” with respect to a Discount Security means interest, if any, borne by such Security at a Stated Interest Rate.
 	7	 	

“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts.
“Eligible Obligations” means:
(a)                with respect to Securities denominated in Dollars, Government Obligations; or
(b)               with respect to Securities denominated in a currency other than Dollars or in a composite currency, such other obligations or instruments as shall be specified with respect to such Securities as contemplated by Section 3.1.
“Event of Default” has the meaning specified in Section 10.1.
“Excepted Property” has the meaning specified in the Granting Clauses of this Indenture.
“Exchange Rate” has the meaning specified in Section 10.1.
“Expert” means a Person who is an engineer, appraiser or other expert and which, with respect to any certificate to be signed by such Person and delivered to the Trustee, is qualified to pass upon the matters set forth in such certificate. For purposes of this definition,  “engineer”  means a Person engaged in the engineering profession or otherwise qualified to pass upon engineering matters (including, but not limited to, a Person licensed as a professional engineer, whether or not then engaged in the engineering profession), which Person, unless required to be Independent, may be an employee or Affiliate of the Company.
“Expert’s Certificate” means a certificate signed by an Authorized Officer and by an Expert (which Expert (a) shall be selected either by the Board of Directors or by an Authorized Officer, the execution of such certificate by such Authorized Officer to be conclusive evidence of such selection, and (b) except as otherwise required in Sections 4.2, 6.7 and 8.9, may be an employee or Affiliate of the Company duly authorized either by the Board of Directors or by an Authorized Officer) and delivered to the Trustee. The amount stated in any Expert’s Certificate as to the Cost, Fair Value or fair market value of property shall be conclusive and binding upon the Company, the Trustee and the Holders of the Securities.
“Fair Value,” with respect to property, means the fair value of such property as may be determined by reference to (a) the amount which would be likely to be obtained in an arm’s-length transaction with respect to such property between an informed and willing buyer and an informed and willing seller, under no compulsion, respectively, to buy or sell, (b) the amount of investment with respect to such property which, together with a reasonable return thereon, would be likely to be recovered through ordinary business operations or otherwise, (c) the Cost, accumulated depreciation and replacement cost with respect to such property and/or (d) any other relevant factors;  provided ,  however , that (x) the Fair Value of property shall be determined without deduction for any Liens on such property prior to the Lien of this Indenture (except as otherwise provided in Section 8.3) and (y) the Fair Value to the Company of Property Additions shall not reflect any reduction relating to the fact that such Property Additions may be of less value to a Person which is not the owner or operator of the Mortgaged Property or any portion thereof than to a Person which is such owner or operator. Fair Value may be determined, without physical inspection, by the use of accounting and engineering records and other data maintained by the Company or otherwise available to the Expert certifying the same.
 	8	 	

“Funded Cash” has the meaning specified in Section 1.2.
“Funded Property” has the meaning specified in Section 1.2.
“Global Security” has the meaning specified in Section 3.8.
“Governmental Authority” means the government of the United States or of any State or Territory thereof or of the District of Columbia or of any county, municipality or other political subdivision of any thereof, or any department, agency, authority or other instrumentality of any of the foregoing.
“Government Obligations” means:
(a)                direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States entitled to the benefit of the full faith and credit thereof; and
(b)               certificates, depositary receipts or other instruments which evidence a direct ownership interest in obligations described in clause (a) above or in any specific interest or principal payments due in respect thereof;  provided ,  however , that the custodian of such obligations or specific interest or principal payments shall be a bank or trust company (which may include the Trustee or any Paying Agent) subject to Federal or State supervision or examination with a combined capital and surplus of at least Fifty Million Dollars ($50,000,000); and  provided ,  further , that except as may be otherwise required by law, such custodian shall be obligated to pay to the holders of such certificates, depositary receipts or other instruments the full amount received by such custodian in respect of such obligations or specific payments and shall not be permitted to make any deduction therefrom.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and delivered and as it may from time to time be supplemented or amended by one or more indentures or other instruments supplemental hereto entered into pursuant to the applicable provisions hereof.
“Independent,” when applied to any Accountant or Expert, means such a Person who (a) is in fact independent, as determined in good faith by the Company, (b) does not have any substantial interest, direct or indirect, in the Company or in any Affiliate of the Company and (c) is not connected with the Company or any Affiliate of the Company, as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.
“Independent Expert’s Certificate” means a certificate signed by an Independent Expert and delivered to the Trustee.
 	9	 	

“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Securities” means any of the following obligations or securities on which neither the Company, any other obligor on the Securities nor any Affiliate of either is the obligor: (a) Government Obligations; (b) interest bearing deposit accounts (which may be represented by certificates of deposit) in any national or state bank (which may include the Trustee or any Paying Agent) or savings and loan association which has outstanding securities rated by a nationally recognized rating organization in either of the two (2) highest rating categories (without regard to modifiers) for short-term securities or in any of the three (3) highest rating categories (without regard to modifiers) for long-term securities; (c) bankers’ acceptances drawn on and accepted by any commercial bank (which may include the Trustee or any Paying Agent) which has outstanding securities rated by a nationally recognized rating organization in either of the two (2) highest rating categories (without regard to modifiers) for short-term securities or in any of the three (3) highest rating categories (without regard to modifiers) for long-term securities; (d) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, any State or Territory of the United States or the District of Columbia, or any political subdivision of any of the foregoing, which are rated by a nationally recognized rating organization in either of the two (2) highest rating categories (without regard to modifiers) for short-term securities or in any of the three (3) highest rating categories (without regard to modifiers) for long-term securities; (e) bonds or other obligations of any agency or instrumentality of the United States; (f) corporate debt securities which are rated by a nationally recognized rating organization in either of the two (2) highest rating categories (without regard to modifiers) for short-term securities or in any of the three (3) highest rating categories (without regard to modifiers) for long-term securities; (g) repurchase agreements with respect to any of the foregoing obligations or securities with any banking or financial institution (which may include the Trustee or any Paying Agent) which has outstanding securities rated by a nationally recognized rating organization in either of the two (2) highest rating categories (without regard to modifiers) for short-term securities or in any of the three (3) highest rating categories (without regard to modifiers) for long-term securities; (h) securities issued by any regulated investment company (including any investment company for which the Trustee or any Paying Agent is the advisor), as defined in Section 851 of the Code or successor section of the Code or successor federal statute, provided that the portfolio of such investment company is limited to obligations or securities of the character and investment quality contemplated in clauses (a) through (f) above and repurchase agreements which are fully collateralized by any of such obligations or securities; and (i) any other obligations or securities which may lawfully be purchased by the Trustee in its capacity as such.
“Lien” means any mortgage, deed of trust, pledge, security interest, encumbrance, easement, lease, reservation, restriction, servitude, claim, charge or similar right and any other lien of any kind, including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof, and any defect, irregularity, exception or limitation in record title.
“Maturity” means, when used with respect to any Security, the date on which the principal of such Security or an installment of principal becomes due and payable as provided in such Security or in this Indenture, whether at the Stated Maturity, by declaration of acceleration, upon call for redemption or otherwise.
 	10	 	

“Mortgaged Property” means, as of any particular time, all property whether real, personal or mixed, which at such time is subject to the Lien of this Indenture.
“Net Earnings” means, for the relevant twelve (12)-month period provided in the applicable Net Earnings Certificate, the Company’s consolidated operating and non-operating revenues, less all its consolidated operating and non-operating expenses, calculated as follows:
(a)                the Company’s and its consolidated Subsidiaries, operating revenues (which may include revenues of the Company, and its consolidated Subsidiaries, subject when collected or accrued to possible refund at a future date);
(b)               the Company’s operating expenses, excluding (i) expenses for taxes on income or profits and other taxes measured by, or dependent on, net income, (ii) expenses or provisions for reserves for renewals, replacements, depreciation, depletion or retirement of property (or any expenditures therefor), or expenses or provisions for amortization of property, (iii) expenses or provisions for interest on any indebtedness of the Company (whether paid or accrued and whether or not capitalized), for the amortization of debt discount, premium, expense or loss on reacquired debt, for any maintenance and replacement, improvement or sinking fund or other device for the retirement of any indebtedness, or for other amortization, (iv) expenses or provisions for any non-recurring charge to income or to retained earnings of whatever kind or nature (including without limitation the recognition of expense or impairment due to the non-recoverability of assets or expense), whether or not recorded as a non-recurring charge in the Company’s books of account, and (v) expenses or provisions for any refund of revenues previously collected or accrued by the Company subject to possible refund; and
(c)                the Company’s other income, net of related expenses or provisions (excluding expenses or provisions for any non-recurring charge to the income or retained earnings of the entity which is the source of such other income of whatever kind or nature (including without limitation the recognition of expense or impairment due to the non-recoverability of assets or expense), whether or not recorded and a non-recurring charge in such entity’s books of account), which other income may include any portion of the allowance for funds used during construction and other deferred costs (or any analogous amounts) which is not included in “other income” (or any analogous item) in the Company’s books of account; provided ,  however , that any amount so added shall not exceed 15% of operating revenue in (a) above minus operating expenses in (b) above;  provided ,  further , that no profits or losses from the sale of capital assets shall be included in making any of the foregoing calculations; and
(d)               if any property owned by the Company or a consolidated Subsidiary shall have been acquired by the Company or such Subsidiary during or after any period for which Net Earnings is being calculated and shall have been used or operated in a business similar to that in which it has been or is to be used or operated by the Company or such consolidated Subsidiary, the actual net earnings of such property during the part of such twelve (12)-month period preceding such acquisition, by use similar to that to which it is to be put by the Company or such consolidated Subsidiary, may be included as if the same had been owned during such entire period; but in any such case there shall be deducted from the Net Earnings of the Company the actual net earnings, if any, derived by it or such consolidated Subsidiary from any property sold or disposed of by the Company or such consolidated Subsidiary after the commencement of such twelve (12)-month period.
 	11	 	

“Net Earnings Certificate” has the meaning specified in Section 1.4.
“Note” means a note or other evidence of indebtedness with respect to which a Security is issued under this Indenture as security for the payment of such note or other evidence of indebtedness.
“Notice of Default” has the meaning specified in Section 10.1.
“Officer’s Certificate” means a certificate signed by an Authorized Officer and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or other counsel reasonably acceptable to the Trustee and who may be an employee or Affiliate of the Company.
“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(a)                Securities theretofore canceled or delivered to the Securities Registrar or the Trustee for cancellation;
(b)               Securities deemed to have been paid for all purposes of this Indenture in accordance with Section 9.1 (whether or not the Company’s indebtedness in respect thereof shall be satisfied and discharged for any other purpose);
(c)                with respect to a Security pledged or otherwise issued as security for any indebtedness of the Company (such as Notes), the amount of any such Security deemed to be Outstanding shall be as follows: upon issuance of such Security, the face amount of such Security shall be deemed to be Outstanding; thereafter, the amount of such Security deemed to be Outstanding shall be reduced by, without duplication, (i) the amount by which the principal amount of such indebtedness of the Company (such as Notes) with respect to which such Security was pledged or otherwise issued as security is repaid or otherwise retired or no longer due and owing and (ii) the amount set forth in an Officer’s Certificate delivered to the Trustee as being the amount by which the face amount of such Security exceeds the aggregate total amount of indebtedness (such as Notes) that the Company has issued with respect to which such Security has been pledged or otherwise issued as security and stating that such Security will not in the future be used as security for any additional indebtedness of the Company (by way of example, if a Security is issued as security for the payment of Notes, as Notes that are secured by such Security are repaid or otherwise retired, the amount of such Security deemed to be Outstanding shall be reduced by the principal amount of the related Notes that are repaid or otherwise retired; and if the Security was issued in the principal amount of $200 million and Notes to be secured by such Security were only issued in the aggregate principal amount of $150 million, upon issuance by the Company of an Officer’s Certificate that the Company would not issue any more Notes for which such Security would serve as security, the amount of such Security deemed to be Outstanding would be reduced by $50 million); and
 	12	 	

(d)               Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it and the Company that such Securities are held by a bona fide purchaser or purchasers in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the requisite principal amount of the Securities Outstanding under this Indenture, or the Outstanding Securities of any series or Tranche, have given any request, demand, authorization, direction, notice, consent or waiver hereunder or whether or not a quorum is present at a meeting of Holders of Securities,
(x)               Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor (unless the Company, such obligor or such Affiliate owns all Securities Outstanding under this Indenture, or all Outstanding Securities of each such series and each such Tranche, as the case may be, determined without regard to this clause (x)) shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver or upon any such determination as to the presence of a quorum, only Securities which the Trustee actually knows to be so owned shall be so disregarded;  provided ,  however , that Securities so owned which have been pledged in good faith may be regarded as Outstanding if it is established to the reasonable satisfaction of the Trustee that the pledgee, and not the Company, any such other obligor or Affiliate of either thereof, has the right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor; and  provided , further , that in no event shall any Security which shall have been delivered to evidence or secure, in whole or in part, the Company’s obligations in respect of other indebtedness be deemed to be owned by the Company if the principal of such Security is payable, whether at Stated Maturity or upon mandatory redemption, at the same time as the principal of such other indebtedness is payable, whether at Stated Maturity or upon mandatory redemption or acceleration, but only to the extent of such portion of the principal amount of such Security as does not exceed the principal amount of such other indebtedness; and
(y)               the principal amount of a Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 10.2; and
provided, further, that, in the case of any Security the principal of which is payable from time to time without presentment or surrender, the principal amount of such Security that shall be deemed to be Outstanding at any time for all purposes of this Indenture shall be the original principal amount thereof less the aggregate amount of principal thereof theretofore paid.
 	13	 	

“Paying Agent” means any Person, including the Company, authorized by the Company to pay the principal of and premium, if any, or interest, if any, on any Securities on behalf of the Company.
“Periodic Offering” means an offering of Securities of a series at any time or from time to time, any or all of the specific terms of which Securities, including without limitation the rate or rates of interest, if any, thereon, the Stated Maturity or Maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents from time to time subsequent to the initial request for the authentication and delivery of such Securities by the Trustee, all as contemplated in Section 3.1 and clause (b) of Section 4.1.
“Permitted Liens” means, as of any particular time, any of the following:
(a)                Liens for taxes, assessments and other governmental charges or requirements which are not delinquent or which are being contested in good faith by appropriate proceedings or which secure charges that do not exceed in the aggregate the greater of (i) Ten Million Dollars ($10,000,000) and (ii) 3% of the principal amount of the Securities then Outstanding;
(b)               mechanics’, workmen’s, repairmen’s, materialmen’s, warehousemen’s and carriers’ Liens, other Liens incident to construction, Liens or privileges of any employees of the Company for salary or wages earned, but not yet payable, and other Liens, including without limitation Liens for worker’s compensation awards, arising in the ordinary course of business for charges or requirements which are not delinquent or which are being contested in good faith and by appropriate proceedings;
(c)                Liens in respect of attachments, judgments or awards arising out of judicial or administrative proceedings (i) in an amount not exceeding the greater of (A) Ten Million Dollars ($10,000,000) and (B) 3% of the principal amount of the Securities then Outstanding or (ii) with respect to which the Company shall (x) in good faith be prosecuting an appeal or other proceeding for review and with respect to which the Company shall have secured a stay of execution pending such appeal or other proceeding or (y) have the right to prosecute an appeal or other proceeding for review;
(d)               zoning laws, easements, leases, reservations or other rights of others in, on, over and/or across, and laws, regulations and restrictions affecting, and defects, irregularities, exceptions and limitations in title to, the Mortgaged Property or any part thereof;  provided ,  however , that such easements, leases, reservations, rights, laws, regulations, restrictions, defects, irregularities, exceptions and limitations do not in the aggregate materially impair the use by the Company of the Mortgaged Property considered as a whole for the purposes for which it is held by the Company;
(e)                defects, irregularities, exceptions and limitations in title to real property subject to rights-of-way in favor of the Company or otherwise or used or to be used by the Company primarily for right-of-way purposes or real property held under lease, easement, license or similar right;  provided ,  however , that (i) the Company shall have obtained from the apparent owner or owners of such real property a sufficient right, by the terms of the instrument granting such right-of-way, lease, easement, license or similar right, to the use thereof for the purposes for which the Company acquired the same, (ii) the Company has power under eminent domain or similar statutes and regulations to remove such defects, irregularities, exceptions or limitations or (iii) such defects, irregularities, exceptions and limitations may be otherwise remedied without undue effort or expense; and defects, irregularities, exceptions and limitations in title to flood lands, flooding rights and/or water rights;
 	14	 	

(f)                Liens securing indebtedness or other obligations neither created, assumed nor guaranteed by the Company nor on account of which it customarily pays interest upon real property or rights in or relating to real property acquired by the Company for the purpose of the transmission or distribution of electric energy, gas or water, for the purpose of telephonic, telegraphic, radio, wireless or other electronic communication or otherwise for the purpose of obtaining rights-of-way;
(g)               leases existing at the date of the execution and delivery of this Indenture, as originally executed and delivered, affecting properties owned by the Company at said date and renewals and extensions thereof; and leases affecting such properties entered into after such date or affecting properties acquired by the Company after such date which, in either case, (i) have respective terms of not more than ten (10) years (including extensions or renewals at the option of the tenant) or (ii) do not materially impair the use by the Company of such properties for the respective purposes for which they are held by the Company;
(h)               to the extent that leases of property, real, personal or intangible, by the Company or a consolidated Subsidiary are Liens, any such lease of property by the Company or a consolidated Subsidiary;
(i)                 Liens vested in lessors, licensors, franchisors or permitters for rent or other amounts to become due or for other obligations or acts to be performed, the payment of which rent or the performance of which other obligations or acts is required under leases, subleases, licenses, franchises or permits, so long as the payment of such rent or other amounts or the performance of such other obligations or acts is not delinquent or is being contested in good faith and by appropriate proceedings;
(j)                 controls, restrictions, obligations, duties and/or other burdens imposed by federal, state, municipal or other law, or by rules, regulations or orders of Governmental Authorities, upon the Mortgaged Property or any part thereof or the operation or use thereof or upon the Company with respect to the Mortgaged Property or any part thereof or the operation or use thereof or with respect to any franchise, grant, license, permit or public purpose requirement, or any rights reserved to or otherwise vested in Governmental Authorities to impose any such controls, restrictions, obligations, duties and/or other burdens;
(k)               rights which Governmental Authorities may have by virtue of franchises, grants, licenses, permits or contracts, or by virtue of law, to purchase, recapture or designate a purchaser of or order the sale of the Mortgaged Property or any part thereof, to terminate franchises, grants, licenses, permits, contracts or other rights or to regulate the property and business of the Company; and any and all obligations of the Company correlative to any such rights;
 	15	 	

(l)                 Liens required by law or governmental regulations (i) as a condition to the transaction of any business or the exercise of any privilege or license, (ii) to enable the Company to maintain self-insurance or to participate in any funds established to cover any insurance risks, (iii) in connection with workers’ compensation, unemployment insurance, social security, any pension or welfare benefit plan or (iv) to share in the privileges or benefits required for companies participating in one or more of the arrangements described in clauses (ii) and (iii) above;
(m)             Liens on the Mortgaged Property or any part thereof which are granted by the Company to secure duties or public or statutory obligations or to secure, or serve in lieu of, surety, stay or appeal bonds;
(n)               rights reserved to or vested in others to take or receive any part of any coal, ore, gas, oil and other minerals, any timber and/or any electric capacity or energy, gas, water, steam and any other products developed, produced, manufactured, generated, purchased or otherwise acquired by the Company or by others on property of the Company;
(o)               (i) rights and interests of Persons other than the Company arising out of contracts, agreements and other instruments to which the Company is a party and which relate to the common ownership or joint use of property; and (ii) all Liens on the interests of Persons other than the Company in property owned in common by such Persons and the Company if and to the extent that the enforcement of such Liens would not adversely affect the interests of the Company in such property in any material respect;
(p)               any restrictions on assignment and/or requirements of any assignee to qualify as a permitted assignee and/or public utility or public service corporation;
(q)               any Liens which have been bonded for the full amount in dispute or for the payment of which other adequate security arrangements have been made;
(r)                 rights and interests granted pursuant to Section 8.2(d);
(s)                Prepaid Liens or Purchase Money Liens;
(t)                 Liens junior to the Lien of this Indenture; and
(u)               the Trustee’s Lien.
“Person” means any individual, corporation, partnership, limited liability partnership, joint venture, trust or unincorporated organization or any Governmental Authority.
“Place of Payment,” when used with respect to the Securities of any series, or any Tranche thereof, means the place or places, specified as contemplated by Section 3.1, at which, subject to Section 6.2, principal of and premium, if any, and interest, if any, on the Securities of such series or Tranche are payable.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the extent lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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“Prepaid Lien” means any Lien securing indebtedness for the payment, prepayment or redemption of which there shall have been irrevocably deposited in trust with the trustee or other holder of such Lien moneys and/or Investment Securities which (together with the interest reasonably expected to be earned from the investment and reinvestment in Investment Securities of the moneys and/or the principal of and interest on the Investment Securities so deposited) shall be sufficient for such purpose;  provided ,  however , that if such indebtedness is to be redeemed or otherwise prepaid prior to the stated maturity thereof, any notice requisite to such redemption or prepayment shall have been given in accordance with the instrument creating such Lien or irrevocable instructions to give such notice shall have been given to such trustee or other holder.
“Property Additions” has the meaning specified in Section 1.3.
“Purchase Money Lien” means, with respect to any property being acquired or disposed of by the Company or being released from the Lien of this Indenture, a Lien on such property which:
(v)               is taken or retained by the transferor of such property to secure all or part of the purchase price thereof;
(w)             is granted to one or more Persons other than the transferor which, by making advances or incurring an obligation, give value to enable the grantor of such Lien to acquire rights in or the use of such property;
(x)               is granted to any other Person in connection with the release of such property from the Lien of this Indenture on the basis of the deposit with the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by such Lien on such property (as well as any other property subject thereto);
(y)               is held by a trustee or agent for the benefit of one or more Persons described in clause (a), (b) and/or (c) above, provided that such Lien may be held, in addition, for the benefit of one or more other Persons which shall have theretofore given, or may thereafter give, value to or for the benefit or account of the grantor of such Lien for one or more other purposes; or
(z)                otherwise constitutes a purchase money mortgage or a purchase money security interest under applicable law;
and, without limiting the generality of the foregoing, for purposes of this Indenture, the term Purchase Money Lien shall be deemed to include any Lien described above whether or not such Lien (x) shall permit the issuance or other incurrence of additional indebtedness secured by such Lien on such property, (y) shall permit the subjection to such Lien of additional property and the issuance or other incurrence of additional indebtedness on the basis thereof and/or (z) shall have been granted prior to the acquisition, disposition or release of such property, shall attach to or otherwise cover property other than the property being acquired, disposed of or released and/or shall secure obligations issued prior and/or subsequent to the issuance of the obligations delivered in connection with such acquisition, disposition or release.
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“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or in any supplemental indenture.
“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture or in any supplemental indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.1.
“Required Currency” has the meaning specified in Section 3.11.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer of the Trustee, including any vice president, assistant vice president, assistant secretary, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Retired Securities” means any Securities authenticated and delivered under this Indenture which (a)(i) no longer remain Outstanding by reason of the applicability of clause (a), (b) or (d) in the definition of Outstanding or (ii) are Securities pledged or otherwise issued as security for any indebtedness of the Company (such as Notes) as described in clause (c) of the definition of Outstanding to the extent such a Security is no longer deemed Outstanding for the reason described in subclause (i) or (ii) of such clause (c), (b) have not been made the basis under any of the provisions of this Indenture of one or more Authorized Purposes and (c) have not been paid, redeemed, purchased or otherwise retired by the application thereto of Funded Cash.
“Securities” means any bonds, notes and other evidences of indebtedness authenticated and delivered under this Indenture.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.5.
“Service Territory” means all or parts of the following counties in the State of New Jersey: Hunterdon; Mercer; Middlesex; Morris; Sussex; Union; and Warren; or all or part of any other county in the State of New Jersey for which the Company obtains a franchise to provide public utility service.
“Special Record Date” for the payment of any Defaulted Interest on the Securities of any series means a date fixed by the Trustee pursuant to Section 3.7.
“Stated Interest Rate” means a rate (whether fixed or variable) at which an obligation by its terms is stated to bear simple interest. Any calculation or other determination to be made under this Indenture by reference to the Stated Interest Rate on an obligation shall be made (a) if the Company’s obligations in respect of any other indebtedness shall be evidenced or secured in whole or in part by such obligation, by reference to the lower of the Stated Interest Rate on such obligation and the Stated Interest Rate on such other indebtedness and (b) without regard to the effective interest cost to the Company of such obligation or of any such other indebtedness.
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“Stated Maturity,” when used with respect to any obligation or any installment of principal thereof or interest thereon, means the date on which the principal of such obligation or such installment of principal or interest is stated to be due and payable (without regard to any provisions for redemption, prepayment, acceleration, purchase or extension).
“Subsidiary” means any corporation directly or indirectly controlled by the Company.
“Successor Corporation” has the meaning set forth in Section 13.1.
“Title Policy” means a standard American Land Title Association 2006 Form (or the then current form at the time of issuance) (ALTA) title insurance policy issued by a title insurance company reasonably acceptable to the Trustee (it being agreed that a title insurance company with an AM Best rating of A or better (or a reasonably comparable rating from another corporation providing similar ratings) shall be reasonably acceptable) (a) insuring the Company in an amount at least equal to the assessed value attributable to each tract and parcel of land and improvements thereon included in the Property Additions as set forth on the Expert’s Certificate delivered pursuant to Sections 4.2 or 8.3 (provided that no such insurance shall be required for any tract and parcel of land and improvements thereon having an assessed value of less than $1,000,000 (which amount shall increase at the rate of the percentage increase in the CPI measured annually from January 1, 2019)), (b) insuring that the Indenture constitutes a Lien on such real property, subject to no Lien thereon prior to the Lien of the Indenture, except Permitted Liens and standard exceptions in an ALTA title insurance policy, and (c) including all typical and applicable endorsements.
“Tranche” means a group of Securities which (a) are of the same series and (b) have identical terms except as to principal amount, rate of interest, maturity date and/or date of issuance.
“Trust Indenture Act” means, as of any time, the Trust Indenture Act of 1939, or any successor statute, as such may be amended and in effect at such time.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee, and, if at any time there is more than one Person acting as trustee hereunder, “Trustee” shall mean each such Person so acting.
“Trustee’s Lien” has the meaning specified in Section 11.7.
“United States” means the United States of America, its Territories, its possessions and other areas subject to its political jurisdiction.
Section 1.2 Funded Property; Funded Cash.
“Funded Property” means:
(a)                all Property Additions to the extent that the same shall have been designated in an Expert’s Certificate to be deemed to be Funded Property;
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(b)               all Property Additions to the extent that the same shall have been made the basis of the authentication and delivery of Securities under this Indenture pursuant to Section 4.2;
(c)                all Property Additions to the extent that the same shall have been made the basis of the release of property from the Lien of this Indenture pursuant to Section 8.3;
(d)               all Property Additions to the extent that the same shall have been substituted for Funded Property retired pursuant to Section 8.2;
(e)                all Property Additions to the extent that the same shall have been made the basis of the withdrawal of cash held by the Trustee pursuant to Section 4.4 or 8.6; and
(f)                all Property Additions to the extent that the same shall have been used as the basis of a credit against, or otherwise in satisfaction of, the requirements of any sinking, improvement, maintenance, replacement or similar fund or analogous provision established with respect to the Securities of any series, or any Tranche thereof, as contemplated by Section 3.1;  provided ,  however , that any such Property Additions shall cease to be Funded Property when all of the Securities of such series or Tranche shall have been paid.
In the event that in any certificate filed with the Trustee in connection with any of the transactions referred to in clauses (a), (b), (c), (e) and (f) of this Section, only a part of the Cost or Fair Value of the Property Additions described in such certificate shall be required for the purposes of such certificate, then such Property Additions shall be deemed to be Funded Property only to the extent so required for the purpose of such certificate.
All Funded Property that shall be abandoned, destroyed, released or otherwise disposed of shall for the purpose of Section 1.3 hereof be deemed Funded Property retired and for other purposes of this Indenture shall thereupon cease to be Funded Property but, as provided in this Indenture, may at any time thereafter again become Funded Property. Neither any reduction in the Cost or book value of property recorded in the plant account of the Company, nor the transfer of any amount appearing in such account to intangible and/or adjustment accounts, otherwise than in connection with actual retirements of physical property abandoned, destroyed, released or disposed of, and otherwise than in connection with the removal of such property in its entirety from plant account, shall be deemed to constitute a retirement of Funded Property.
The Company may make allocations, on a pro-rata or other reasonable basis (including, but not limited to, the designation of specific properties or the designation of all or a specified portion of the properties reflected in one or more generic accounts or subaccounts in the Company’s books of account), for the purpose of determining the extent to which fungible properties, or other properties not otherwise identified, reflected in the same generic account or subaccount in the Company’s books of account constitute Funded Property or Funded Property retired.
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“Funded Cash” means:
(a)                cash, held by the Trustee hereunder, to the extent that it represents the proceeds of insurance on Funded Property (except as otherwise provided in Section 6.7), or cash deposited in connection with the release of Funded Property pursuant to Article 8, or the payment of the principal of, or the proceeds of the release of, obligations secured by a Purchase Money Lien and delivered to the Trustee pursuant to Article 8, all subject, however, to the provisions of Section 6.7 and Section 8.6; and
(b)               any cash deposited with the Trustee under Section 4.4.
Section 1.3 Property Additions; Cost.
(a)                “Property Additions” means, as of any particular time, any item, unit or element of property which at such time is owned by the Company and is subject to the Lien of this Indenture;  provided ,  however , that Property Additions shall not include:
(i)                    goodwill, going concern value rights or intangible property except as provided in subsection (c) of this Section; or
(ii)                   any property the cost of acquisition or construction of which is, in accordance with generally accepted accounting principles, properly chargeable to an operating expense account of the Company.
(b)               When any Property Additions are certified to the Trustee as the basis of any Authorized Purpose (except as otherwise provided in Section 8.3 and Section 8.6),
(i)                     there shall be deducted from the Cost or Fair Value to the Company thereof, as the case may be (as of the date so certified), an amount equal to the Cost (or as to Property Additions of which the Fair Value to the Company at the time the same became Funded Property was certified to be an amount less than the Cost as determined pursuant to this Section, then such Fair Value, as so certified, in lieu of Cost) of all Funded Property of the Company retired to the date of such certification (other than the Funded Property, if any, in connection with the application for the release of which such certificate is filed) and not theretofore deducted from the Cost or Fair Value to the Company of Property Additions theretofore certified to the Trustee,
(ii)                   there shall be deducted from the Cost or Fair Value to the Company thereof, as the case may be, ten-sevenths (10/7) of the amount of any outstanding indebtedness which at the time of filing such certificate shall be secured by a Lien prior to the Lien of this Indenture on the Property Additions that are the subject of such certificate (other than any such indebtedness that was deducted in connection with a prior certification of Property Additions for an Authorized Purpose); and
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(iii)                 there may, at the option of the Company, be added to such Cost or Fair Value, as the case may be, the sum of:
(A)             the principal amount of any obligations secured by a Purchase Money Lien, not theretofore so added and which the Company then elects so to add, which shall theretofore have been delivered to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture as the basis of the release of Funded Property retired from the Lien of this Indenture or such prior Lien, as the case may be;
(B)              ten-sevenths (10/7) of the amount of any cash, not theretofore so added and which the Company then elects so to add, which shall theretofore have been delivered to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture as the proceeds of insurance on Funded Property retired (to the extent of the portion thereof deemed to be Funded Cash) or as the basis of the release of Funded Property retired from the Lien of this Indenture or from such prior Lien, as the case may be;
(C)              ten-sevenths (10/7) of the principal amount of any Security or Securities, or portion of such principal amount, not theretofore so added and which the Company then elects so to add, (I) which shall theretofore have been delivered to the Trustee as the basis of the release of Funded Property retired or (II) the right to the authentication and delivery of which under the provisions of Section 4.3 shall at any time theretofore have been waived under Section 8.3(d)(iii) as the basis of the release of Funded Property retired;
(D)             the Cost or Fair Value to the Company (whichever shall be less), after making any deductions and any additions pursuant to this Section, of any Property Additions, not theretofore so added and which the Company then elects so to add, which shall theretofore have been made the basis of the release of Funded Property retired (such Fair Value to be the amount shown in the Expert’s Certificate delivered to the Trustee in connection with such release); and
(E)              the Cost or Fair Value to the Company (whichever shall be less) to the Company of any Property Additions not theretofore so added and which the Company then elects so to add, to the extent that the same shall have been substituted for Funded Property retired;
provided, however, that the aggregate of the amounts added under clause (iii) above shall in no event exceed the amounts deducted under clause (i) above.
(c)                Except as otherwise provided in Section 8.3, the term “Cost” with respect to Property Additions shall mean the sum of (i) any cash delivered in payment therefor or for the acquisition thereof, (ii) an amount equivalent to the fair market value in cash (as of the date of delivery) of any securities or other property delivered in payment therefor or for the acquisition thereof, (iii) the principal amount of any obligations secured by a prior Lien upon such Property Additions outstanding at the time of the acquisition thereof, (iv) the principal amount of any other obligations incurred or assumed in connection with the payment for such Property Additions or for the acquisition thereof and (v) any other amounts which, in accordance with generally accepted accounting principles, are properly charged or chargeable to the plant or other property accounts of the Company with respect to such Property Additions as part of the cost of construction or acquisition thereof, including, but not limited to, any allowance for funds used during construction or any similar or analogous amount;  provided ,  however , that, notwithstanding any other provision of this Indenture,
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(x)       with respect to Property Additions owned by a successor corporation immediately prior to the time it shall have become such by consolidation or merger or acquired by a successor corporation in or as a result of a consolidation or merger (excluding, in any case, Property Additions owned by the Company immediately prior to such time), Cost shall mean the amount or amounts at which such Property Additions are recorded in the plant or other property accounts of such successor corporation, or the predecessor corporation from which such Property Additions are acquired, as the case may be, immediately prior to such consolidation or merger;
(y)       with respect to Property Additions which shall have been acquired (otherwise than by construction) by the Company without any consideration consisting of cash, securities or other property or the incurring or assumption of indebtedness, no determination of Cost shall be required, and, wherever in this Indenture provision is made for Cost or Fair Value, Cost with respect to such Property Additions shall mean an amount equal to the Fair Value to the Company thereof or, if greater, the aggregate amount reflected in the Company’s books of account with respect thereto upon the acquisition thereof; and
(z)       in no event shall the Cost of Property Additions be required to reflect any depreciation or amortization in respect of such Property Additions, or any adjustment to the amount or amounts at which such Property Additions are recorded in plant or other property accounts due to the non-recoverability of investment or otherwise.
If any Property Additions are shown by the Expert’s Certificate provided for in Section 4.2(b)(ii) to include property which has been used or operated by others than the Company in a business similar to that in which it has been or is to be used or operated by the Company, the Cost thereof need not be reduced by any amount in respect of any goodwill, going concern value rights and/or intangible property simultaneously acquired for which no separate or distinct consideration shall have been paid or apportioned, and in such case the term Property Additions as defined herein may include such goodwill, going concern value rights and intangible property.
Section 1.4 Net Earnings Certificate; Annual Interest Requirements.
A “Net Earnings Certificate” means a certificate signed by an Authorized Officer and an Accountant (who may be employed by or Affiliated with the Company), stating:
(a)                the Net Earnings of the Company for any period of twelve (12) consecutive calendar months within the eighteen (18) calendar months immediately preceding the first day of the month in which the Company Order requesting the authentication and delivery under this Indenture of Securities pursuant to Section 4.2 is delivered to the Trustee, specifying:
(i)                    the Company’s and its consolidated Subsidiaries’ operating and non-operating revenues (which may include revenues of the Company, and its consolidated Subsidiaries, subject when collected or accrued to possible refund at a future date);
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(ii)                   less all its consolidated operating and non-operating expenses; and
(iii)                 which calculation shall be in conformity and adjusted, to the extent applicable, as provided in clauses (a) through (d) in the definition of Net Earnings; and
(b)               the “Annual Interest Requirements,” being the interest requirements for one year, at the respective Stated Interest Rates, if any, borne prior to Maturity, upon:
(i)                    all Securities Outstanding hereunder at the date of such certificate, except any for the payment or redemption of which the Securities applied for are to be issued;  provided ,  however , in the case of any Securities pledged or otherwise issued as security for any indebtedness of the Company (such as Notes), the amount of the interest charges during such period on such Security shall be deemed to be the amount of the interest charges during such period on such related indebtedness (except in the event that the interest rate of all of the related Notes has not been determined as of the date of such Certificate, the interest rate of such Security with respect to any portion deemed Outstanding for which the interest rate of any related Notes has not been determined shall be deemed to be the highest Stated Interest Rate on any of the Notes for which such Security is providing security) and the amount of such Securities Outstanding shall be as provided in clause (c) of the definition of Outstanding; and  provided ,  further , that if Outstanding Securities of any series bear interest at a variable rate or rates, then the interest requirement on the Securities of such series shall be determined by reference to the rate or rates in effect on the day immediately preceding the date of such certificate;
(ii)                  all Securities then applied for in pending applications for the original issuance of Securities, including the application in connection with which such certificate is made;  provided ,  however , in the case of any Securities to be pledged or otherwise issued as security for any indebtedness of the Company (such as Notes) for which the interest charge on such Security is to be based on the interest charge of the related indebtedness, the amount of the interest charges during such period on such Security shall be deemed to be the amount of the interest charges during such period on such related indebtedness (which, in the case of Securities issued as security for Notes, in the event that the interest rate of all of the related Notes has not been determined as of such date of such Certificate, the interest rate of such Security shall be, for the portion of such Security for which the interest rate of the related Notes has been established, such interest rate or rates, and for any portion of the Security for which the related indebtedness has not yet been determined, the interest rate on such portion of the Security shall be deemed to be the highest rate on any of the related Notes for which the interest has been determined and, if no related Notes with respect to which such Security will be issued has a determinable interest rate, the interest rate on such Security shall be deemed to be 10% per annum); and  provided , f urther , that (A) if Securities of any series are to bear interest at a variable rate or rates, then the interest requirement on the Securities of such series shall be determined by reference to the rate or rates to be in effect at the time of the initial authentication and delivery of such Securities and (B) the determination of the interest requirement on Securities of a series subject to a Periodic Offering shall be further subject to the provisions of Section 4.1(f); and
(iii)                 the principal amount of all other bonds, notes or other form of indebtedness of the Company secured by a Lien prior to the Lien of this Indenture upon property subject to the Lien of this Indenture to be outstanding immediately after the issuance of Securities then subject to the applicable application for the original issuance of Securities (other than (A) bonds, notes or other form of indebtedness of the Company the repayment of which supports or is supported by other indebtedness included in Annual Interest Requirements pursuant to one of the other clauses of this definition, (B) bonds, notes or other form of indebtedness for the payment of which the Securities applied for are to be issued, and (C) bonds, notes or other form of indebtedness secured by a Prepaid Lien);  provided ,  however , that if any such indebtedness bears interest at a variable rate or rates, then the interest requirement on such indebtedness shall be determined by reference to the rate or rates in effect on the day immediately preceding the date of such certificate; and,  provided ,  further , that any amounts collected by others to be applied to debt service on indebtedness of the Company, and not otherwise treated on the Company’s books as revenue, shall be added to the Company’s operating revenues when determining Net Earnings.
Section 1.5 Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and, if so otherwise required in this Indenture, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, it being understood that in the case of any such application or request as to which the furnishing of an Officer’s Certificate is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate need be furnished.
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Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a)                a statement that each Person signing such certificate or opinion has read such covenant or condition in respect of which such document is furnished;
(b)               a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)                a statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)               a statement as to whether, in the opinion of each such Person, such condition or covenant has been complied with.
Section 1.6 Content and Form of Documents Delivered to Trustee.
(a)                Any Officer’s Certificate may be based (without further examination or investigation), insofar as it relates to or is dependent upon legal matters, upon an opinion of, or representations by, counsel, and, insofar as it relates to or is dependent upon matters which are subject to verification by Accountants, upon a certificate or opinion of, or representations by, an Accountant, and, insofar as it relates to or is dependent upon matters which are required in this Indenture to be covered by a certificate or opinion of, or representations by, an Expert, upon the certificate or opinion of, or representations by, an Expert, unless, in any case, such officer has actual knowledge that the certificate or opinion or representations with respect to the matters upon which such Officer’s Certificate may be based as aforesaid are erroneous.
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Any Expert’s Certificate may be based (without further examination or investigation), insofar as it relates to or is dependent upon legal matters, upon an opinion of, or representations by, counsel, and insofar as it relates to or is dependent upon factual matters, information with respect to which is in the possession of the Company and which are not subject to verification by Experts, upon a certificate or opinion of, or representations by, an officer or officers of the Company, unless such Expert has actual knowledge that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion may be based as aforesaid are erroneous.
Any certificate of an Accountant may be based (without further examination or investigation), insofar as it relates to or is dependent upon legal matters, upon an opinion of, or representations by, counsel, and insofar as it relates to or is dependent upon factual matters, information with respect to which is in the possession of the Company and which are not subject to verification by Accountants, upon a certificate of, or representations by, an officer or officers of the Company, unless such Accountant has actual knowledge that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further examination or investigation), insofar as it relates to or is dependent upon factual matters, information with respect to which is in the possession of the Company, upon a certificate of, or representations by, an officer or officers of the Company, and, insofar as it relates to or is dependent upon matters which are subject to verification by Accountants upon a certificate or opinion of, or representations by, an Accountant, and, insofar as it relates to or is dependent upon matters required in this Indenture to be covered by a certificate or opinion of, or representations by, an Expert, upon the certificate or opinion of, or representations by, an Expert, unless such counsel has actual knowledge that the certificate or opinion or representations with respect to the matters upon which his opinion may be based as aforesaid are erroneous. In addition, any Opinion of Counsel may be based (without further examination or investigation), insofar as it relates to or is dependent upon matters covered in an Opinion of Counsel rendered by other counsel, upon such other Opinion of Counsel, unless such counsel has actual knowledge that the Opinion of Counsel rendered by such other counsel with respect to the matters upon which his Opinion of Counsel may be based as aforesaid are erroneous. Further, any Opinion of Counsel with respect to the status of title to or the sufficiency of descriptions of property, and/or the existence or priority of Liens thereon, and/or the recording or filing of documents, and/or any similar matters, may be based (without further examination or investigation) upon (i) title insurance policies or commitments and reports, lien search results, reports or certificates and other similar documents or (ii) certificates of, or representations by, officers, employees, agents and/or other representatives of the Company or (iii) any combination of the documents referred to in (i) and (ii), unless, in any case, such counsel has actual knowledge that the document or documents with respect to the matters upon which his opinion may be based as aforesaid are erroneous. If, in order to render any Opinion of Counsel provided for herein, the signer thereof shall deem it necessary that additional facts or matters be stated in any Officer’s Certificate, certificate of an Accountant or Expert’s Certificate provided for herein, then such certificate may state all such additional facts or matters as the signer of such Opinion of Counsel may request. Such Opinion of Counsel may also rely on other customary items reasonably appropriate for purposes of the opinion.
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(b)               In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
(c)                Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Officer’s Certificate, Expert’s Certificate, Net Earnings Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other inadvertent or unintentional error or omission shall be discovered therein, a new document or instrument may be substituted therefor in corrected form with the same force and effect as if originally filed in the corrected form and, irrespective of the date or dates of the actual execution and/or delivery thereof, such substitute document or instrument shall be deemed to have been executed and/or delivered as of the date or dates required with respect to the document or instrument for which it is substituted. Anything in this Indenture to the contrary notwithstanding, if any such corrective document or instrument indicates that action has been taken by or at the request of the Company which could not have been taken had the original document or instrument not contained such error or omission, the action so taken shall not be invalidated or otherwise rendered ineffective but shall be and remain in full force and effect, except to the extent that such action was a result of willful misconduct or bad faith. Without limiting the generality of the foregoing, any Securities issued under the authority of such defective document or instrument shall nevertheless be the valid obligations of the Company entitled to the benefit of the Lien of this Indenture equally and ratably with all other Outstanding Securities, except as aforesaid.
Section 1.7 Acts of Holders.
(a)                Any request, demand, authorization, direction, notice, consent, election, waiver or other action provided by this Indenture to be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing or, alternatively, may be embodied in and evidenced by the record of Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders duly called and held in accordance with the provisions of Article 15, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the  “Act”  of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 11.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders shall be proved in the manner provided in Section 15.6.
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(b)               The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof or may be proved in any other manner which the Trustee and the Company deem sufficient. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c)                The ownership, principal amount (except as otherwise contemplated in clause (y) of the first proviso to the definition of Outstanding) and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d)               Any request, demand, authorization, direction, notice, consent, election, waiver or other Act of a Holder shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(e)                Until such time as written instruments shall have been delivered to the Trustee with respect to the requisite percentage of principal amount of Securities for the action contemplated by such instruments, any such instrument executed and delivered by or on behalf of a Holder may be revoked with respect to any or all of such Securities by written notice by such Holder or any subsequent Holder, proven in the manner in which such instrument was proven.
(f)                Securities of any series, or any Tranche thereof, authenticated and delivered after any Act of Holders may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any action taken by such Act of Holders. If the Company shall so determine, new Securities of any series, or any Tranche thereof, so modified as to conform, in the opinion of the Trustee and the Company, to such action may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series or Tranche.
(g)               The Company may, at its option, by Company Order, fix in advance a record date for the determination of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or other Act solicited by the Company, but the Company shall have no obligation to do so. In addition, the Trustee may, at its option, fix in advance a record date for the determination of Holders entitled to join in the giving or making of any Notice of Default, any declaration of acceleration referred to in Section 10.2, any request to institute proceedings referred to in Section 10.11 or any direction referred to in Section 10.16. If any such record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act, or such notice, declaration, request or direction, may be given before or after such record date, but only the Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining (i) whether Holders of the requisite proportion of the Outstanding Securities have authorized or agreed or consented to such Act (and for that purpose the Outstanding Securities shall be computed as of the record date) and/or (ii) which Holders may revoke any such Act (notwithstanding subsection (e) of this Section). Nothing in this paragraph shall be construed to prevent the Company, or the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Section 1.8 Notices, Etc. to Trustee and Company.
Except as otherwise provided herein, any request, demand, authorization, direction, notice, consent, election, waiver, Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (a) the Trustee by any Holder or (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if the same shall be in writing and delivered personally to an officer or other responsible employee of the addressee, or transmitted by facsimile transmission, or transmitted by registered-class mail, postage prepaid, to the applicable address set opposite such party’s name below or to such other address as either party hereto may from time to time designate:
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If to the Trustee, to:
Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: Marie McMullen - Institutional Client Services
Facsimile: (302) 636-4149
If to the Company, to:
Elizabethtown Gas Company
1 South Jersey Plaza
Folsom, NJ 08037
Attention: Treasurer
 
Any communication contemplated herein shall be deemed to have been made, given, furnished and filed if personally delivered, on the date of delivery, if transmitted by facsimile transmission or other direct written electronic means, on the date of transmission, and if transmitted by registered mail, on the date of receipt.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured email, pdf, facsimile transmission or other similar unsecured electronic methods;  provided ,  however , that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee email or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, liabilities, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions from the Company notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions from the Company to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 1.9 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given, and shall be deemed given, to Holders if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.
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In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the Person entitled to receive such notice, either before or after the event otherwise to be specified therein, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.10 Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with another provision hereof which is required or deemed to be included in this Indenture by, or is otherwise governed by, any provision of the Trust Indenture Act, such other provision shall control; and if any provision hereof otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
Section 1.11 Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.12 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.13 Separability Clause.
In case any provision in this Indenture or the Securities shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.14 Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto, their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
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Section 1.15 Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New Jersey, except to the extent that the Trust Indenture Act shall be applicable.
Section 1.16 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities other than a provision of any Security, which specifically states that such provision shall apply in lieu of this Section) payment of interest or principal and premium, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no additional interest shall accrue as the result of such delayed payment.
Section 1.17 Investment of Cash Held by Trustee.
Any cash held by the Trustee or any Paying Agent under any provision of this Indenture shall, except as otherwise provided in Section 8.6 or in Article 9, at the request of the Company evidenced by Company Order, be invested or reinvested in Investment Securities designated by the Company (such Company Order to contain a representation to the effect that the securities designated therein constitute Investment Securities), and any interest on such Investment Securities shall be promptly paid over to the Company as received free and clear of any lien. Such Investment Securities shall be held subject to the same provisions hereof as the cash used to purchase the same, but upon a like request of the Company shall be sold, in whole or in designated part, and the proceeds of such sale shall be held subject to the same provisions hereof as the cash used to purchase the Investment Securities so sold. If such sale shall produce a net sum less than the cost of the Investment Securities so sold, the Company shall pay to the Trustee or any such Paying Agent, as the case may be, such amount in cash as, together with the net proceeds from such sale, shall equal the cost of the Investment Securities so sold, and if such sale shall produce a net sum greater than the cost of the Investment Securities so sold, the Trustee or any such Paying Agent, as the case may be, shall promptly pay over to the Company an amount in cash equal to such excess, free and clear of any lien. In no event shall the Trustee be liable for any loss, fee, tax or other charge incurred in connection with the investment or reinvestment in or the sale or liquidation of any Investment Security in accordance with this Indenture.
Notwithstanding the foregoing, if an Event of Default shall have occurred and be continuing, interest on Investment Securities and any gain upon the sale thereof shall be held as part of the Mortgaged Property until such Event of Default shall have been cured or waived, whereupon such interest and gain shall be promptly paid over to the Company free and clear of any lien.
Section 1.18 Foreign Account Tax Compliance Act (FATCA).
The Company agrees (a) to provide the Trustee with such reasonable information as it has in its possession to enable the Trustee to determine whether any payments pursuant to the Indenture are subject to the withholding requirements described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof, and (b) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with such applicable law, for which the Trustee shall not have any liability.
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Section 1.19 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the corporate trust banking industry to resume performance as soon as practicable under the circumstances.
Section 1.20 Waiver of Jury Trial.
 
Each of the Company, the Trustee and each Holder of a Security hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture or the Securities or the transactions contemplated hereby.
 
Article 2
SECURITY FORMS
Section 2.1 Forms Generally.
The definitive Securities of each series shall be in substantially the form or forms established in the indenture supplemental hereto establishing such series, or in a Board Resolution establishing such series, or in an Officer’s Certificate pursuant to such a supplemental indenture or Board Resolution, in any case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form or forms of Securities of any series are established in a Board Resolution or in an Officer’s Certificate pursuant to a supplemental indenture or a Board Resolution, such Board Resolution and Officer’s Certificate, if any, shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 4.1 for the authentication and delivery of such Securities.
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The Securities of each series shall be issuable in registered form without coupons. The definitive Securities shall be produced in such manner as shall be determined by the officers executing such Securities, as evidenced by their execution thereof.
Section 2.2 Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Wilmington Trust, National Association,
as Trustee
 
By: _____________________________
Authorized Signatory
Date of Authentication:
 
Article 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series.
Subject to the provisions of Article 4, the aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the penultimate paragraph of this Section, prior to the authentication and delivery of Securities of any series, there shall be established by specification in a supplemental indenture or in a Board Resolution, or in an Officer’s Certificate or a Company Order or Company Request pursuant to a supplemental indenture or a Board Resolution:
(a)                the title of the Securities of such series (which shall distinguish the Securities of such series from Securities of all other series);
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(b)               any limit upon the aggregate principal amount of the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.4, 3.5, 3.6, 5.6 or 14.6 and except for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(c)                the Persons (without specific identification) to whom interest on Securities of such series, or any Tranche thereof, shall be payable on any Interest Payment Date, if other than the Persons in whose names such Securities (or one or more Predecessor Securities) are registered at the close of business on the Regular Record Date for such interest;
(d)               the date or dates on which the principal of the Securities of such series, or any Tranche thereof, is payable or any formulary or other method or other means by which such date or dates shall be determined, by reference to an index or other fact or event ascertainable outside of this Indenture or otherwise (without regard to any provisions for redemption, prepayment, acceleration, purchase or extension);
(e)                the rate or rates at which the Securities of such series, or any Tranche thereof, shall bear interest, if any (including the rate or rates at which overdue principal, premium or interest shall bear interest, if any), or any formulary or other method or other means by which such rate or rates shall be determined, by reference to an index or other fact or event ascertainable outside of this Indenture or otherwise; the date or dates from which such interest shall accrue; the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on such Securities on any Interest Payment Date; and the basis of computation of interest, if other than as provided in Section 3.10;
(f)                the place or places at which and/or the methods (if other than as provided elsewhere in this Indenture) by which (i) the principal of and premium, if any, and interest, if any, on Securities of such series, or any Tranche thereof, shall be payable, (ii) registration of transfer of Securities of such series, or any Tranche thereof, may be effected, (iii) exchanges of Securities of such series, or any Tranche thereof, may be effected and (iv) notices and demands to or upon the Company in respect of the Securities of such series, or any Tranche thereof, and this Indenture may be served; if other than as provided elsewhere in this Indenture, the Security Registrar and any Paying Agent or Agents for such series or Tranche; and, if such is the case, that the principal of such Securities shall be payable without the presentment or surrender thereof;
(g)               the period or periods within which or the date or dates on which, the price or prices (which may include a premium) at which and the terms and conditions upon which the Securities of such series, or any Tranche thereof, may be redeemed, in whole or in part, at the option of the Company;
(h)               the obligation or obligations, if any, of the Company to redeem or purchase the Securities of such series, or any Tranche thereof, (i) pursuant to any sinking fund or other mandatory redemption provisions, (ii) at the option of a Holder thereof, or (iii) at the option of the Company, and the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions upon which such Securities shall be redeemed or purchased (including without limitation whether any such Securities being redeemed must be surrendered for redemption before being entitled to be paid the applicable Redemption Price), in whole or in part, pursuant to such obligation, and applicable exceptions to the requirements of Section 5.4 in the case of a mandatory redemption, a redemption at the option of the Holder, or an optional redemption on the part of the Company;
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(i)                 the denominations in which Securities of such series, or any Tranche thereof, shall be issuable if other than denominations of One Thousand Dollars ($1,000) and any integral multiple thereof;
(j)                 the currency or currencies, including composite currencies, in which payment of the principal of and premium, if any, and interest, if any, on the Securities of such series, or any Tranche thereof, shall be payable (if other than in Dollars); it being understood that, for purposes of calculations under this Indenture (including calculations of principal amount under Article 4), any amounts denominated in a currency other than Dollars or in a composite currency shall be converted to Dollar equivalents by calculating the amount of Dollars which could have been purchased by the amount of such other currency based on such quotations or methods of determination as shall be specified pursuant to this clause (j);
(k)               if the principal of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, are to be payable, at the election of the Company or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the coin or currency in which payment of any amount as to which such election is made will be payable, the period or periods within which, and the terms and conditions upon which, such election may be made; it being understood that, for purposes of calculations under this Indenture (including calculations of principal amount under Article 4), any such election shall be required to be taken into account, in the manner contemplated in clause (j) of this Section, only after such election shall have been made;
(l)                 if the principal of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, are to be payable, or are to be payable at the election of the Company or a Holder thereof, in securities or other property, the type and amount of such securities or other property, or the formulary or other method or other means by which such amount shall be determined, and the period or periods within which, and the terms and conditions upon which, any such election may be made; it being understood that all calculations under this Indenture (including calculations of principal amount under Article 4) shall be made on the basis of the fair market value of such securities or the Fair Value of such other property, in either case determined as of the most recent practicable date, except that, in the case of any amount of principal or interest that may be so payable at the election of the Company or a Holder, if such election shall not yet have been made, such calculations shall be made on the basis of the amount of principal or interest, as the case may be, that would be payable if no such election were made;
(m)             if the amount payable in respect of principal of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, may be determined with reference to an index or other fact or event ascertainable outside of this Indenture, the manner in which such amounts shall be determined (to the extent not established pursuant to clause (e) of this Section); it being understood that all calculations under this Indenture (including calculations of principal amount under Article 4) shall be made on the basis of the amount that would be payable as principal if such principal were due, or on the basis of the interest rates in effect, as the case may be, on the date next preceding the date of such calculation;
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(n)               if other than the principal amount thereof, the portion of the principal amount of Securities of such series, or any Tranche thereof, which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 10.2;
(o)               the terms, if any, pursuant to which the Securities of such series, or any Tranche thereof, may be converted into or exchanged for shares of capital stock or other securities of the Company or any other Person;
(p)               the obligations or instruments, if any, which shall be considered to be Eligible Obligations in respect of the Securities of such series, or any Tranche thereof, denominated in a currency other than Dollars or in a composite currency, and any additional or alternative provisions for the reinstatement of the Company’s indebtedness in respect of such Securities after the satisfaction and discharge thereof as provided in Section 9.1;
(q)               if the Securities of such series, or any Tranche thereof, are to be issued as a Global Security, (i) any limitations on the rights of the Holder or Holders of such Securities to transfer or exchange the same or to obtain the registration of transfer thereof, (ii) any limitations on the rights of the Holder or Holders thereof to obtain certificates therefor in definitive form in lieu of temporary form and (iii) any and all other matters incidental to such Securities;
(r)                 if the Securities of such series, or any Tranche thereof, are to be issuable as bearer securities, any and all matters incidental thereto which are not specifically addressed in a supplemental indenture as contemplated by clause (f) of Section 14.1;
(s)                any other limitations on the rights of the Holders of the Securities of such Series, or any Tranche thereof, to transfer or exchange such Securities or to obtain the registration of transfer thereof; and if a service charge will be made for the registration of transfer or exchange of Securities of such series, or any Tranche thereof, the amount or terms thereof;
(t)                 any exceptions to Section 1.16, or variation in the definition of Business Day, with respect to the Securities of such series, or any Tranche thereof; and
(u)               any other terms of the Securities of such series, or any Tranche thereof.
With respect to Securities of a series subject to a Periodic Offering, the indenture supplemental hereto or the Board Resolution which establishes such series, or the Officer’s Certificate pursuant to such supplemental indenture or Board Resolution, as the case may be, may provide general terms or parameters for Securities of such series and provide either that the specific terms of Securities of such series, or any Tranche thereof, shall be specified in a Company Order or Company Request or that such terms shall be determined by the Company or its agents in accordance with procedures specified in a Company Order or Company Request as contemplated by clause (b) of Section 4.1.
Anything herein to the contrary notwithstanding, the Trustee shall be under no obligation to authenticate and deliver Securities of any series the terms of which, established as contemplated by this Section, would affect the rights, duties, obligations, liabilities or immunities of the Trustee under this Indenture or otherwise.
Section 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, or any Tranche thereof, the Securities of each series shall be issuable in denominations of One Thousand Dollars ($1,000) and any integral multiple thereof.
Section 3.3 Execution, Dating, Certificate of Authentication.
Unless otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, or any Tranche thereof, the Securities shall be executed on behalf of the Company by an Authorized Officer, and may have the corporate seal of the Company affixed thereto or reproduced thereon and attested by any other Authorized Officer. The signature of any or all of these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals who were at the time of execution Authorized Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
Unless otherwise specified as contemplated by Section 3.1 with respect to any series of Securities, or any Tranche thereof, each Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 3.1 with respect to any series of Securities, or any Tranche thereof, no Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent by manual signature of an authorized officer thereof, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if (a) any Security shall have been authenticated and delivered hereunder to the Company, or any Person acting on its behalf, but shall never have been issued and sold by the Company, (b) the Company shall deliver such Security to the Security Registrar for cancellation or shall cancel such Security and deliver evidence of such cancellation to the Trustee, in each case as provided in Section 3.9, and (c) the Company, at its election, shall deliver to the Trustee a written statement (which need not comply with Section 1.5 and need not be accompanied by an Officer’s Certificate or an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, then, for all purposes of this Indenture, such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits hereof.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, or any Tranche thereof, the Company may execute, and upon Company Order or Company Request the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed, photocopied or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities; provided ,  however , that temporary Securities need not recite specific redemption, sinking fund, conversion or exchange provisions.
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Except as otherwise specified as contemplated by Section 3.1 with respect to the Securities of any series, or any Tranche thereof, after the preparation of definitive Securities of such series or Tranche, the temporary Securities of such series or Tranche shall be exchangeable, without charge to the Holder thereof, for definitive Securities of such series or Tranche upon surrender of such temporary Securities at the office or agency of the Company maintained pursuant to Section 6.2 as a Place of Payment for such Securities. Upon such surrender of temporary Securities, the Company shall, except as aforesaid, execute and the Trustee shall authenticate and deliver in exchange therefor definitive Securities of the same series and Tranche, of authorized denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and Tranche and of like tenor authenticated and delivered hereunder.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept, with respect to the Securities of each series, or any Tranche thereof, at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Security Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities of such series or Tranche and the registration of transfer thereof. The Trustee is hereby appointed “ Security Registrar ” for the purpose of registering Securities and transfers of Securities as herein provided. If any indenture supplemental hereto refers to any transfer agents (in addition to the Security Registrar) initially designated by the Company with respect to any series of Securities, the Company may at any time rescind the designation of any such transfer agent or approve a change in the location through which such transfer agent acts, provided that the Company maintains a transfer agent in each Place of Payment for such series. The Company may at any time designate additional transfer agents with respect to the Securities of any series, or any Tranche thereof. Anything herein to the contrary notwithstanding, the Company may designate one or more of its offices as an office in which a register with respect to the Securities of one or more series, or any Tranche or Tranches thereof, shall be maintained, and the Company may designate itself the Security Registrar with respect to one or more of such series.
Upon surrender for registration of transfer of any Security of such series or Tranche at the office or agency of the Company in a Place of Payment for such series or Tranche, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series and Tranche, of authorized denominations and of like tenor and aggregate principal amount.
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Except as otherwise specified as contemplated by Section 3.1 with respect to the Securities of any series, or any Tranche thereof, any Security of such series or Tranche may be exchanged at the option of the Holder, for one or more new Securities of the same series and Tranche, of authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Trustee or the Security Registrar) be duly endorsed or shall be accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee or the Security Registrar, as the case may be, duly executed by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 3.1 with respect to Securities of any series, or any Tranche thereof, no service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 5.6 or 14.6 not involving any transfer.
Neither the Trustee nor the Company shall be required, pursuant to the provisions of this Section 3.5, (a) to issue, register the transfer of or exchange any Securities of any series (or of any Tranche thereof) during a period beginning at the opening of business fifteen (15) days before the day of the mailing of a notice of redemption of any such Securities of such series or Tranche selected for redemption under Section 5.3 and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange any Security so selected for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, any portion not to be redeemed.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance with the express requirements of this Indenture.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and Tranche, and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the ownership of and the destruction, loss or theft of any Security and (b) such security or indemnity as may be reasonably required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security is held by a Person purporting to be the owner of such Security, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and Tranche, and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, but subject to compliance with the foregoing conditions, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone other than the Holder of such new Security, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 3.1 with respect to the Securities of any series, or any Tranche thereof, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Except in the case of a Global Security or as otherwise provided in the terms of a Security, at the option of the Company, interest on any series of Securities may be paid (a) by check mailed to the address of the Person entitled thereto as it shall appear on the Security Register of such series or (b) by electronic funds transfer in immediately available funds at such place and to such account as designated in writing by the Person entitled thereto as specified in the Security Register of such series.
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Any Paying Agents will be identified in a supplemental indenture hereto. The Company may at any time designate additional Paying Agents or rescind the designation of any Paying Agent; however, the Company at all times will be required to maintain a Paying Agent in each Place of Payment for each series of Securities.
Any interest on any Security of any series, or any Tranche thereof, which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called  “Defaulted Interest” ) shall forthwith cease to be payable to the Holder on the related Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a)                The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series, or any Tranche thereof (or their respective Predecessor Securities), are registered at the close of business on a date (herein called a “ Special Record Date ”) to determine the holders of record who will receive such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series, or any Tranche thereof, and the date of the proposed payment (the “ Payment Date ”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than thirty (30) days and not less than ten (10) days prior to the date of the proposed payment and not less than twenty-five (25) days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall, not less than five (5) days prior to such Payment Date, cause notice of the proposed payment of such Defaulted Interest and the Payment Date therefor to be given to each Holder of Securities of such series, or any Tranche thereof. Notice of the proposed payment of such Defaulted Interest and the Payment Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series, or any Tranche thereof (or their respective Predecessor Securities), are registered at the close of business on such Special Record Date.
(b)               The Company may make payment of any Defaulted Interest on the Securities of any series, or any Tranche thereof, in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Sections 3.5 and 3.7) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
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None of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility or obligation to any beneficial owner in a Security issued in global form (a “ Global Security ”), a participant or other Person with respect to the accuracy of the records of a depositary or its nominee or of any participant, with respect to any ownership interest in the Global Securities or with respect to the delivery to any participant, beneficial owner or other Person (other than the depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Global Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Global Securities and this Indenture shall be given or made only to or upon the order of the registered holders (which shall be the depositary or its nominee in the case of the Global Security). The rights of beneficial owners in the Global Security shall be exercised only through the depositary subject to the applicable procedures. The Trustee, the Paying Agent and the Security Registrar shall be entitled to rely and shall be fully protected in relying upon information furnished by the depositary with respect to its members, participants and any beneficial owners. The Trustee, the Paying Agent and the Security Registrar shall be entitled to deal with the depositary, and any nominee thereof, that is the registered holder of any Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal, premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Security) as the sole holder of such Global Security and shall have no obligations to the beneficial owners thereof. None of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility or liability for any acts or omissions of the depositary with respect to such Global Security, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between the depositary and any participant or between or among the depositary, any such participant and/or any holder or owner of a beneficial interest in such Global Security, or for any transfers of beneficial interests in any such Global Security.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any depositary (or its nominee), as a Holder, with respect to such Global Security or shall impair, as between such depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security.
Section 3.9 Cancellation by Security Registrar.
All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Security Registrar, be delivered to the Security Registrar and, if not theretofore canceled, shall be promptly canceled by the Security Registrar. The Company may at any time deliver to the Security Registrar for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever or which the Company shall not have issued and sold, and all Securities so delivered shall be promptly canceled by the Security Registrar. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section 3.9, except as expressly permitted by this Indenture. All canceled Securities held by the Security Registrar shall be disposed of in accordance with the Security Registrar’s then customary practice for disposing of securities, unless otherwise directed by a Company Order;  provided ,  however , that the Trustee shall not be required to destroy any canceled Securities.
Section 3.10 Computation of Interest; Usury Not Intended.
Except as otherwise specified as contemplated by Section 3.1 for Securities of any series, or any Tranche thereof, interest on the Securities of each series shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) thirty (30) day months and, with respect to any period less than a full calendar month, on the basis of the actual number of days elapsed during such period.
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Section 3.11 Payment to Be in Proper Currency.
In the case of the Securities of any series, or any Tranche thereof, denominated in any currency other than Dollars or in a composite currency (the  “Required Currency” ), except as otherwise specified with respect to such Securities as contemplated by Section 3.1, the obligation of the Company to make any payment of the principal thereof, or the premium, if any, or interest, if any, thereon, shall not be discharged or satisfied by any tender by the Company, or recovery by the Trustee, in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the Trustee timely holding the full amount of the Required Currency then due and payable.
Section 3.12 CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” or other similar numbers (if then generally in use), and, if so, the Trustee or Security Registrar may use “CUSIP” or such other numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, in which case none of the Company or, as the case may be, the Trustee or the Security Registrar, or any agent of any of them, shall have any liability in respect of any CUSIP number used on any such notice, and any such redemption shall not be affected by any defect in or omission of such numbers.
Section 3.13 Naming Series of Securities.
The Securities of all series shall be known and entitled generally as the “First Mortgage Bonds” of the Company. With respect to the Securities of any particular series, the Company may incorporate in the general title of such Securities the rate of interest borne by the Securities of such series, the maturity date or any other words or figures descriptive thereof or of the security thereof or distinctive or definitive of such series, as the Board of Directors of the Company may determine.
Article 4
ISSUANCE OF SECURITIES
Section 4.1 General.
Subject to the provisions of Section 4.2, 4.3 or 4.4, whichever may be applicable (or any combination thereof), the Trustee shall authenticate and deliver Securities of a series, for original issue, at any time or from time to time in accordance with the Company Order or Company Request referred to below, upon receipt by the Trustee of:
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(a)                the instrument or instruments establishing the form or forms and terms of such series, as provided in Sections 2.1 and 3.1;
(b)               a Company Order or Company Request requesting the authentication and delivery of such Securities and, to the extent that the terms of such Securities shall not have been established in an indenture supplemental hereto or in a Board Resolution, or in an Officer’s Certificate pursuant to a supplemental indenture or Board Resolution, all as contemplated by Section 3.1, either (i) establishing such terms or (ii) in the case of Securities of a series subject to a Periodic Offering, specifying procedures, reasonably acceptable to the Trustee, by which such terms are to be established (which procedures may provide for authentication and delivery pursuant to electronic instructions from the Company or any agent or agents thereof), in either case in accordance with the instrument or instruments delivered pursuant to clause (a) above;
(c)                the Securities of such series, executed on behalf of the Company by an Authorized Officer;
(d)               an Opinion of Counsel to the effect that:
(i)                    any approval of the BPU required for the issuance of such Securities has been obtained;
(ii)                   the form or forms of such Securities have been duly authorized by the Company and have been established in conformity with the provisions of this Indenture;
(iii)                 the terms of such Securities have been duly authorized by the Company and have been established in conformity with the provisions of this Indenture; and
(iv)                 when such Securities shall have been authenticated and delivered by the Trustee and issued and delivered by the Company in the manner and subject to any conditions or qualifications specified in such Opinion of Counsel, such Securities will constitute valid obligations of the Company, entitled to the benefit of the Lien of this Indenture equally and ratably with all other Securities then Outstanding;
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provided, however, that, with respect to Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication and delivery of such Securities (provided that such Opinion of Counsel addresses the authentication and delivery of all such Securities) and that, in lieu of the opinions described in clauses (ii) and (iii) above, counsel may opine that:
(x)       when the terms of such Securities shall have been established pursuant to a Company Order or Orders or pursuant to such procedures as may be specified from time to time by a Company Order or Orders, all as contemplated by and in accordance with the instrument or instruments delivered pursuant to clause (a) above, such terms will have been duly authorized by the Company and will have been established in conformity with the provisions of this Indenture; and
(y)       when such Securities shall have been authenticated and delivered by the Trustee in accordance with this Indenture and the Company Order or Orders or the specified procedures referred to in paragraph (x) above and issued and delivered by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, such Securities will constitute valid obligations of the Company, entitled to the benefit of the Lien of this Indenture equally and ratably with all other Securities then Outstanding;
(e)                an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the issuance of such Securities have been complied with and, to the knowledge of the signer, no Event of Default has occurred and is continuing;  provided ,  however , that with respect to Securities of a series subject to a Periodic Offering, either (i) such an Officer’s Certificate shall be delivered at the time of the authentication and delivery of each Security of such series or (ii) the Officer’s Certificate delivered at or prior to the time of the first authentication and delivery of the Securities of such series shall state that the statements therein shall be deemed to be made at the time of each, or each subsequent, authentication and delivery of Securities of such series;
(f)                a Net Earnings Certificate showing the Net Earnings of the Company for the period therein specified to have been not less than an amount equal to two (2.00) times the Annual Interest Requirements therein specified, all in accordance with the provisions of Section 1.4;  provided ,  however , that the Trustee shall not be entitled to receive a Net Earnings Certificate hereunder if the Securities of such series are to have no Stated Interest Rate prior to Maturity; and  provided ,  further , that, with respect to Securities of a series subject to a Periodic Offering, other than Securities theretofore authenticated and delivered, (i) it shall be assumed in the Net Earnings Certificate delivered in connection with the authentication and delivery of Securities of such series that none of the Securities of such series not yet authenticated and delivered shall have a Stated Interest Rate in excess of a maximum rate to be stated therein, and thereafter no Securities of such series which would have a Stated Interest Rate at the time of the initial authentication and delivery thereof in excess of such maximum rate shall be authenticated and delivered under the authority of such Net Earnings Certificate but instead shall only be authenticated and delivered under the authority of a new Net Earnings Certificate which complies with the requirements of this clause (f), including the proviso relating to Securities of a series subject to a Periodic Offering, and (ii) so long as the Stated Interest Rate that Securities of a series subject to a Periodic Offering bear at the time of the initial authentication and delivery thereof does not exceed the maximum rate assumed in the most recent Net Earnings Certificate delivered with respect to the Securities of such series, the Trustee shall not be entitled to receive a new Net Earnings Certificate at the time of any subsequent authentication and delivery of the Securities of such series (unless such Securities are authenticated and delivered on or after the date which is two years after the most recent Net Earnings Certificate with respect to such series was delivered pursuant to this clause (f), in which case this subclause (ii) shall not apply); and
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(g)               such other Opinions of Counsel, certificates and other documents as may be required under Sections 4.2, 4.3 or 4.4, whichever may be applicable to the authentication and delivery of the Securities of such series.
With respect to Securities of a series subject to a Periodic Offering, the Trustee may conclusively rely, as to the authorization by the Company of any of such Securities, the forms and terms thereof, the validity thereof and the compliance of the authentication and delivery thereof with the terms and conditions of this Indenture, upon the Opinion or Opinions of Counsel and the certificates and other documents delivered pursuant to this Article 4 at or prior to the time of the first authentication and delivery of Securities of such series until any of such opinions, certificates or other documents have been superseded or revoked or expire by their terms. In connection with the authentication and delivery of Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company’s instructions to authenticate and deliver such Securities do not violate any applicable law or any applicable rule, regulation or order of any Governmental Authority having jurisdiction over the Company.
Section 4.2 Issuance of Securities on the Basis of Property Additions.
(a)                Securities of any one or more series may be authenticated and delivered, in whole or in part, on the basis of Property Additions which do not constitute Funded Property in a principal amount not exceeding 70% of the balance of the Cost or the Fair Value to the Company of such Property Additions (whichever shall be less) after making any deductions and any additions pursuant to Section 1.3(b).
(b)               Securities of any series shall be authenticated and delivered by the Trustee on the basis of Property Additions upon receipt by the Trustee of:
(i)                    the documents with respect to the Securities of such series specified in Section 4.1;
(ii)                  an Expert’s Certificate dated as of a date not more than ninety (90) days prior to the date of the Company Order requesting the authentication and delivery of such Securities,
(A)             describing all property constituting Property Additions and designated by the Company, in its discretion, to be made the basis of the authentication and delivery of such Securities (such description of property to be made by reference, at the election of the Company, either to specified items, units and/or elements of property or portions thereof, on a percentage or Dollar basis, or to properties reflected in specified accounts or subaccounts in the Company’s books of account or portions thereof, on a Dollar basis), and stating the Cost of such property;
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(B)              stating that all such property constitutes Property Additions;
(C)              stating that such Property Additions are desirable for use in the conduct of the business, or one of the businesses, of the Company;
(D)             stating that such Property Additions, to the extent of the Cost or Fair Value to the Company thereof (whichever is less) to be made the basis of the authentication and delivery of such Securities, do not constitute Funded Property;
(E)              stating, except as to Property Additions acquired, made or constructed wholly through the delivery of securities or other property or the incurrence of other obligations, that the amount of cash forming all or part of the Cost thereof was equal to or more than an amount to be stated therein;
(F)               briefly describing, with respect to any Property Additions acquired, made or constructed in whole or in part through the delivery of securities or other property or the incurrence of other obligations, the securities or other property so delivered or obligations so incurred and stating the date of such delivery or incurrence;
(G)             stating what part, if any, of such Property Additions includes property which within six months prior to the date of acquisition thereof by the Company had been used or operated by others than the Company in a business similar to that in which it has been or is to be used or operated by the Company and stating whether or not, in the judgment of the signers, the Fair Value thereof to the Company, as of the date of such certificate, is less than Twenty-Five Thousand Dollars ($25,000) and whether or not such Fair Value is less than 1% of the aggregate principal amount of Securities then Outstanding;
(H)             stating, in the judgment of the signers, the Fair Value to the Company, as of the date of such certificate, of such Property Additions, except any thereof with respect to the Fair Value to the Company of which a statement is to be made in an Independent Expert’s Certificate pursuant to clause (iii) below;
(I)                if any property included in such Property Additions is subject to an encumbrance of the character described (I) in clause (d) of the definition of Permitted Liens, stating that none of such defects or encumbrances, in the judgment of the signers, materially impairs the use made or proposed to be made by the Company of the property so affected, or (II) in clause (g)(ii) of the definition of Permitted Liens, stating that such exception or reservation does not, in the judgment of the signers, materially impair the use by the Company of such property for the purposes for which it is held by the Company;
(J)                stating the amount required to be deducted under Section 1.3(b)(i) and 1.3(b)(ii) and the amounts elected to be added under Section 1.3(b)(iii) in respect of Funded Property retired of the Company;
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(K)             stating the lower of the Cost or the Fair Value to the Company of such Property Additions, after the deductions therefrom and additions thereto specified in such Expert’s Certificate pursuant to clause (J) above;
(L)              stating the amount equal to 70% of the amount required to be stated pursuant to clause (K) above; and
(M)            stating the aggregate principal amount of the Securities to be authenticated and delivered on the basis of such Property Additions (such amount not to exceed the amount stated pursuant to clause (L) above);
(iii)                 in case any Property Additions are shown by the Expert’s Certificate provided for in clause (ii) above to include property which, within six months prior to the date of acquisition thereof by the Company, had been used or operated by others than the Company in a business similar to that in which it has been or is to be used or operated by the Company and such certificate does not show the Fair Value thereof to the Company, as of the date of such certificate, to be less than Twenty-Five Thousand Dollars ($25,000) or less than 1% of the aggregate principal amount of Securities then Outstanding, an Independent Expert’s Certificate stating, in the judgment of the signer, the Fair Value to the Company, as of the date of such Independent Expert’s Certificate, of (X) such Property Additions which have been so used or operated and (at the option of the Company) as to any other Property Additions included in the Expert’s Certificate provided for in clause (ii) above and (Y) in case such Independent Expert’s Certificate is being delivered in connection with the authentication and delivery of Securities, any property so used or operated which has been subjected to the Lien of this Indenture since the commencement of the then current calendar year as the basis for the authentication and delivery of Securities and as to which an Independent Expert’s Certificate has not previously been furnished to the Trustee; and
(iv)                 in case any Property Additions are shown by the Expert’s Certificate provided for in clause (ii) above to have been acquired, made or constructed in whole or in part through the delivery of securities or other property, an Expert’s Certificate stating, in the judgment of the signers, the fair market value in cash of such securities or other property at the time of delivery thereof in payment for or for the acquisition of such Property Additions; and
(v)                  an Opinion of Counsel to the effect that:
(A)             this Indenture constitutes, or, upon the delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of conveyance, assignment or transfer, if any, specified in said opinion, will constitute, a Lien on all the Property Additions to be made the basis of the authentication and delivery of such Securities, and describing all Liens prior to the Lien of this Indenture (except Permitted Liens) to which such Property Additions are subject, and describing the obligations secured thereby (except that such opinion need not cover properties having an assessed value of less than $1,000,000 (which amount shall increase at the rate of the percentage increase in the CPI measured annually from January 1, 2019);  provided ,  however , in lieu of the Opinion of Counsel required by this clause (v)(A), the Company may deliver one or more Title Policies; and
(B)              the Company has the corporate authority to operate such Property Additions.
Section 4.3 Issuance of Securities on the Basis of Retired Securities.
(a)                Securities of any one or more series may be authenticated and delivered, in whole or in part, on the basis of, and in an aggregate principal amount not exceeding the aggregate principal amount of, Retired Securities.
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(b)               Securities of any series shall be authenticated and delivered by the Trustee on the basis of Retired Securities upon receipt by the Trustee of:
(i)                   the documents with respect to the Securities of such series specified in Section 4.1; provided, however, that no Net Earnings Certificate shall be required to be delivered unless the maximum Stated Interest Rate, if any, on such Retired Securities at the time of their authentication and delivery was less than the maximum Stated Interest Rate, if any, on such Securities to be in effect upon the initial authentication and delivery thereof; and
(ii)                  an Officer’s Certificate stating that Retired Securities, specified by series, Tranche, if any, and amount, in an aggregate principal amount not less than the aggregate principal amount of Securities to be authenticated and delivered on the basis of this Section 4.3, have theretofore been authenticated and delivered and, as of the date of such Officer’s Certificate, constitute, or will upon the occurrence of certain specified actions constitute, Retired Securities and are the basis for the authentication and delivery of such Securities (or applicable portion thereof).
Section 4.4 Issuance of Securities on the Basis of Deposit of Cash.
(a)                Securities of any one or more series may be authenticated and delivered, in whole or in part, on the basis of, and in an aggregate principal amount not exceeding the amount of, any deposit with the Trustee of cash for such purpose.
(b)               Securities of any series shall be authenticated and delivered by the Trustee, in whole or in part, on the basis of the deposit of cash when the Trustee shall have received, in addition to such deposit, the documents with respect to the Securities of such series specified in Section 4.1.
(c)                All cash deposited with the Trustee under the provisions of this Section shall be held by the Trustee as a part of the Mortgaged Property and may be withdrawn from time to time by the Company, upon application of the Company to the Trustee, in an amount equal to the aggregate principal amount of Securities to the authentication and delivery of which the Company shall be entitled under any of the provisions of this Indenture by virtue of compliance with all applicable provisions of this Indenture (except as hereinafter in this subsection (c) otherwise provided).
Upon any such application for withdrawal, the Company shall comply with all applicable provisions of this Indenture relating to the authentication and delivery of Securities except that the Company shall not in any event be required to deliver the documents specified in Section 4.1.
Any withdrawal of cash under this subsection (c) shall operate as a waiver by the Company of its right to the authentication and delivery of the Securities on which it is based and such Securities may not thereafter be authenticated and delivered hereunder. Any Property Additions which have been made the basis of any such right to the authentication and delivery of Securities so waived shall be deemed to have been made the basis of the withdrawal of such cash; and any Retired Securities which have been made the basis of any such right to the authentication and delivery of Securities so waived shall be deemed to have been made the basis of the withdrawal of such cash.
(d)               If at any time the Company shall so direct, any sums deposited with the Trustee under the provisions of this Section may be used or applied to the purchase, payment or redemption of Securities in the manner and subject to the conditions provided in clauses (d) and (e) of Section 8.6.
Article 5
REDEMPTION OF SECURITIES
Section 5.1 Applicability of Article.
Securities of any series, or any Tranche thereof, which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of such series or Tranche) in accordance with this Article.
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Section 5.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or an Officer’s Certificate. The Company shall, at least forty-five (45) days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of such Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
Section 5.3 Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche thereof, are to be redeemed, the particular Securities to be redeemed shall be selected by the Security Registrar from the Outstanding Securities of such series or Tranche not previously called for redemption, by such method as shall be provided for by any particular series or Tranche, or, in the absence of any such provision, by such method of random selection as the Security Registrar shall deem fair and appropriate and which may, in any case, provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of such series or Tranche or any integral multiple thereof) of the principal amount of Securities of such series or Tranche having a denomination larger than the minimum authorized denomination for Securities of such series or Tranche;  provided ,  however , that if, as indicated in an Officer’s Certificate, the Company shall have offered to purchase all or any principal amount of the Securities then Outstanding of any series, or any Tranche thereof, and less than all of such Securities as to which such offer was made shall have been tendered to the Company for such purchase, the Security Registrar, if so directed by Company Order, shall select for redemption all or any principal amount of such Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and the Trustee in writing of the Securities selected for redemption and, in the case of any Securities selected to be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 5.4 Notice of Redemption; Deposit.
(a)                Notice of redemption shall be given in the manner provided in Section 1.9 to the Holders of the Securities to be redeemed not less than thirty (30) nor more than sixty (60) days prior to the Redemption Date.
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(b)               With respect to Securities of each series, or any Tranche thereof, to be redeemed, each notice of redemption shall identify the Securities to be redeemed (including CUSIP, if any) and shall state:
(i)                    the Redemption Date;
(ii)                  the Redemption Price;
(iii)                if less than all the Outstanding Securities of any series or Tranche are to be redeemed, the identification of the particular Securities to be redeemed and the portion of the principal amount of any Security to be redeemed in part;
(iv)                that on the Redemption Date the Redemption Price, together with accrued interest, if any, to the Redemption Date, will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;
(v)                  the place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any, unless it shall have been specified as contemplated by Section 3.1 with respect to such Securities that such surrender shall not be required;
(vi)                 that the redemption is for a sinking or other fund, if such is the case; and
(vii)               such other matters as the Company shall deem desirable or appropriate.
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(c)                With respect to any notice of redemption of Securities at the election of the Company, unless, upon the giving of such notice such Securities shall be deemed to have been paid in accordance with Section 9.1, such notice may state that such redemption shall be conditional upon the receipt by the Paying Agent or Agents for such Securities, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium, if any, and interest, if any, on such Securities and that if such money shall not have been so received such notice shall be of no force or effect and the Company shall not be required to redeem such Securities. In the event that such notice of redemption contains such a condition and such money is not so received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the manner in which the notice of redemption was given, that such money was not so received and such redemption was not required to be made, and the Paying Agent or Agents for the Securities otherwise to have been redeemed shall promptly return to the Holders thereof any of such Securities which had been surrendered for payment upon such redemption.
(d)               Notice of redemption of Securities to be redeemed at the election of the Company, and any notice of non-satisfaction of a condition for redemption as aforesaid, shall be given by the Company or, at the Company’s request, by the Security Registrar in the name and at the expense of the Company. Notice of mandatory redemption of Securities shall be given by the Security Registrar in the name and at the expense of the Company.
(e)                On or before the Redemption Date specified in the notice of redemption given as provided in this Section, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 6.3) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 5.5 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the conditions, if any, set forth in such notice having been satisfied, the Securities or portions thereof so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless, in the case of an unconditional notice of redemption, the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities or portions thereof, if interest-bearing, shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, such Security or portion thereof shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date;  provided ,  however , that such surrender shall not be a condition to such payment unless so specified as contemplated by Section 3.1 with respect to such Security; and  provided ,  further , that, except as otherwise specified as contemplated by Section 3.1 with respect to such Security, any installment of interest on any Security the Stated Maturity of which installment is on or prior to the Redemption Date shall be payable to the Holder of such Security, or one or more Predecessor Securities, registered as such at the close of business on the related Regular Record Date according to the terms of such Security and subject to the provisions of Section 3.7.
Section 5.6 Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed only in part at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities of the same series and Tranche, of any authorized denomination requested by such Holder and of like tenor and in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Article 6
COVENANTS
Section 6.1 Payment of Securities; Lawful Possession; Maintenance of Lien.
(a)                The Company represents that at the date of the execution and delivery of this Indenture, as originally executed and delivered, the Company is lawfully possessed of the Mortgaged Property.
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(b)               The Company covenants and agrees that it shall pay the principal of and premium, if any, and interest, if any, on the Securities of each series in accordance with the terms of such Securities and this Indenture.
(c)                The Company covenants and agrees that it shall maintain and preserve the Lien of this Indenture so long as any Securities shall remain Outstanding, subject,  however , to the provisions of Article 8 and Article 14.
Section 6.2 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the Securities of each series, or any Tranche thereof, an office or agency where payment of such Securities shall be made, where the registration of transfer or exchange of such Securities may be effected and where notices and demands to or upon the Company in respect of such Securities and this Indenture may be served. The Company initially appoints the Trustee as its agent for said purpose. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency and prompt notice to the Holders of any such change in the manner specified in Section 1.9. If at any time the Company shall fail to maintain any such required office or agency in respect of Securities of any series, or any Tranche thereof, or shall fail to furnish the Trustee with the address thereof, payment of such Securities shall be made, registration of transfer or exchange thereof may be effected and notices and demands in respect thereof may be served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or more other offices or agencies with respect to the Securities of one or more series, or any Tranche thereof, for any or all of the foregoing purposes and may from time to time rescind such designations;  provided ,  however , that, unless otherwise specified as contemplated by Section 3.1 with respect to the Securities of such series or Tranche, no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes in each Place of Payment for such Securities in accordance with the requirements set forth above. The Company shall give prompt written notice to the Trustee, and prompt notice to the Holders in the manner specified in Section 1.9, of any such designation or rescission and of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or agency required by this Section may be maintained at an office of the Company, in which event the Company shall perform all functions to be performed at such office or agency.
Section 6.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to the Securities of any series, or any Tranche thereof, it shall, on or before each due date of the principal of and premium, if any, and interest, if any, on any of such Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided. The Company shall promptly notify the Trustee of any failure by the Company (or any other obligor on such Securities) to make any payment of principal of or premium, if any, or interest, if any, on such Securities.
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Whenever the Company shall have one or more Paying Agents for the Securities of any series, or any Tranche thereof, it shall, on or before each due date of the principal of and premium, if any, and interest, if any, on such Securities, deposit with such Paying Agents sums sufficient (without duplication) to pay the principal and premium or interest so becoming due, such sums to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any series, or any Tranche thereof, other than the Company or the Trustee, to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(a)                hold all sums held by it for the payment of the principal of and premium, if any, or interest, if any, on such Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b)               give the Trustee notice of any failure by the Company (or any other obligor upon such Securities) to make any payment of principal of or premium, if any, or interest, if any, on such Securities; and
(c)                at any time during the continuance of any such failure, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent and furnish to the Trustee such information as it possesses regarding the names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent and, if so stated in a Company Order delivered to the Trustee, in accordance with the provisions of Article 9; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of and premium, if any, or interest, if any, on any Security and remaining unclaimed for two years after such principal and premium, if any, or interest, if any, has become due and payable shall be paid to the Company on Company Request, or, if then held by the Company, shall be discharged from such trust; and, upon such payment or discharge, the Holder of such Security shall, as an unsecured general creditor and not as the Holder of an Outstanding Security, look only to the Company for payment of the amount so due and payable and remaining unpaid, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;  provided ,  however , that the Trustee or such Paying Agent, before being required to make any such payment to the Company, shall, upon receipt of a Company Request and at the expense of the Company, cause to be mailed, on one occasion only, notice to such Holder that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such mailing, any unclaimed balance of such money then remaining will be paid to the Company.
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Section 6.4 Corporate Existence.
Subject to the rights of the Company under Article 13, the Company shall do or cause to be done all things necessary to preserve and keep its corporate existence in full force and effect.
Section 6.5 Maintenance of Properties.
(a)                The Company shall cause (or, with respect to property owned in common with others, make reasonable effort to cause) the Mortgaged Property, considered as a whole, to be maintained and kept in good condition, repair and working order and shall cause (or, with respect to property owned in common with others, make reasonable effort to cause) to be made such repairs, renewals, replacements, betterments and improvements thereof, as, in the judgment of the Company, may be necessary in order that the operation of the Mortgaged Property, considered as a whole, may be conducted in accordance with common industry practice;  provided , however , that nothing in this Section shall prevent the Company from discontinuing, or causing the discontinuance of, the operation and maintenance of any portion of the Mortgaged Property; and  provided , further , that nothing in this Section shall prevent the Company from selling, transferring or otherwise disposing of, or causing the sale, transfer or other disposition of, any portion of the Mortgaged Property.
(b)               In the event that the BPU or other regulatory authority having jurisdiction over the Company in the premises shall determine that the expenditures required by this Section for repairs and maintenance are excessive or shall, by order or regulation, prohibit, in whole or in part, any such expenditures for repairs and maintenance, then, upon filing with the Trustee a certified copy of such order or a copy of such regulation, as the case may be, the Company shall, so long as such order or such regulation remains in effect, be relieved from compliance with the covenants contained in this Section, to the extent that such expenditures for repairs and maintenance shall have been held excessive or shall be prohibited.
Section 6.6 Payment of Taxes; Discharge of Liens.
The Company shall pay all taxes and assessments and other governmental charges lawfully levied or assessed upon the Mortgaged Property, or upon any part thereof, or upon the interest of the Trustee in the Mortgaged Property, before the same shall become delinquent, and shall make reasonable effort to observe and conform in all material respects to all valid requirements of any Governmental Authority relative to any of the Mortgaged Property and all covenants, terms and conditions upon or under which any of the Mortgaged Property is held; and the Company shall not suffer any Lien to be created upon the Mortgaged Property, or any part thereof, prior to the Lien hereof, other than Permitted Liens and Liens to which any property acquired after the date of this Indenture may be subject;  provided ,  however , that nothing contained in this Section shall require the Company (i) to observe or conform to any requirement of Governmental Authority or to cause to be paid or discharged, or to make provision for, any such Lien, or to pay any such tax, assessment or governmental charge so long as the validity thereof shall be contested in good faith and by appropriate legal proceedings or such Lien, tax, assessment or charge does not exceed the greater of (a) Ten Million Dollars ($10,000,000) and (b) 3% of the principal amount of the Securities then Outstanding or, (ii) to pay, discharge or make provisions for any tax, assessment or other governmental charge, the validity of which shall not be so contested if adequate security for the payment of such tax, assessment or other governmental charge and for any penalties or interest which may reasonably be anticipated from failure to pay the same shall be given to the Trustee or (iii) to pay, discharge or make provisions for any Liens existing on the Mortgaged Property at the date of execution and delivery of this Indenture, as originally executed and delivered; and  provided ,  further , that nothing in this Section shall prohibit the issuance or other incurrence of additional indebtedness, or the refunding of outstanding indebtedness, secured by any Lien prior to the Lien hereof which is permitted hereunder to continue to exist.
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Section 6.7 Insurance.
(a)                The Company shall (i) keep or cause to be kept all the Mortgaged Property insured against loss or damage from such risks and in such amount and terms (including reasonable deductible provisions), to the extent that property of similar character is usually so insured by companies similarly situated and operating like properties, by reputable insurance companies, the proceeds of such insurance (except as to any loss of Excepted Property and except as to any particular loss less than the greater of (A) Twenty Million Dollars ($20,000,000) (which amount shall increase at the rate of the percentage increase in the CPI measured annually from January 1, 2019) and (B) 3% of the principal amount of Securities Outstanding on the date of such particular loss) to be made payable, subject to applicable law, to the Trustee as the interest of the Trustee may appear, or to the trustee or other holder of any other Lien prior hereto upon property subject to the Lien hereof, if the terms thereof require such payment or (ii) in lieu of or supplementing such insurance in whole or in part, adopt some other method or plan of protection against loss or damage at least equal in protection to the method or plan of protection against such loss or damage of companies similarly situated and operating properties subject to similar hazards or properties on which an equal primary insurance rate for such hazards has been set by reputable insurance companies; and if the Company shall adopt such other method or plan of protection, it shall, subject to applicable law (and except as to any loss of Excepted Property and except as to any particular loss less than the greater of (X) Twenty Million Dollars ($20,000,000) (which amount shall increase at the rate of the percentage increase in the CPI measured annually from January 1, 2019) and (Y) 3% of the principal amount of Securities Outstanding on the date of such particular loss) pay to the Trustee on account of any loss covered by such method or plan an amount in cash equal to the amount of such loss less any amounts otherwise paid to the Trustee in respect of such loss or paid to the trustee or other holder of any other Lien prior hereto upon property subject to the Lien hereof in respect of such loss if the terms thereof require such payment. Any cash so required to be paid by the Company pursuant to any such method or plan shall for the purposes of this Indenture be deemed to be proceeds of insurance.
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The Company shall deliver to the Trustee, whenever the Trustee shall reasonably make a request therefor, copies of insurance certificates or other descriptions of any insurance policies then covering any of the Mortgaged Property, including the names of the insurance companies that have issued such policies and the amounts and expiration dates thereof, as well as a description of any other method or plan of protection against loss or damage then covering the Mortgaged Property.
(b)               All moneys paid to the Trustee by the Company in accordance with this Section or received by the Trustee as proceeds of any insurance, in either case on account of a loss on or with respect to Funded Property, shall, subject to the requirements of any other Lien prior hereto upon property subject to the Lien hereof, be held by the Trustee and, subject as aforesaid and provided that no Event of Default shall have occurred and be continuing, shall be paid by it to the Company to reimburse the Company for an equal amount expended or committed for expenditure in the rebuilding, renewal and/or replacement of or substitution for the property destroyed or damaged or lost, upon receipt by the Trustee of:
(i)                     a Company Request requesting such payment; and
(ii)                   an Expert’s Certificate:
(A)             describing the property so damaged or destroyed or otherwise lost;
(B)              stating the Cost of such property (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost) or, if such damage or destruction shall have affected only a portion of such property, stating the allocable portion of such Cost or Fair Value;
(C)              stating the amounts so expended or committed for expenditure in the rebuilding, renewal, replacement of and/or substitution for such property; and
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(D)             stating the Fair Value to the Company of such property as rebuilt or renewed or as to be rebuilt or renewed and/or of the replacement or substituted property, and if
(I)                within six months prior to the date of acquisition thereof by the Company, such property has been used or operated, by a person or persons other than the Company, in a business similar to that in which it has been or is to be used or operated by the Company, and
(II)             the Fair Value to the Company of such property as set forth in such Expert’s Certificate is not less than Twenty-Five Thousand Dollars ($25,000) and not less than 1% of the aggregate principal amount of the Securities at the time Outstanding, the Expert making the statement required by this clause (D) shall be an Independent Expert.
Any such moneys not so applied within thirty-six (36) months after its receipt by the Trustee, or in respect of which notice in writing of intention to apply the same to the work of rebuilding, renewal, replacement or substitution then in progress and uncompleted shall not have been given to the Trustee by the Company within such thirty-six (36) months, or which the Company shall at any time notify the Trustee is not to be so applied, shall thereafter be withdrawn, used or applied in the manner, to the extent and for the purposes, and subject to the conditions,  provided  in Section 8.6;  provided ,  however , that if the amount of such moneys shall exceed 70% of the amount stated pursuant to clause (B) in the Expert’s Certificate referred to above, the amount of such excess shall not be deemed to be Funded Cash, shall not be subject to Section 8.6 and shall be remitted to or upon the order of the Company upon the withdrawal, use or application of the balance of such moneys pursuant to Section 8.6.
Anything in this Indenture to the contrary notwithstanding, if property on or with respect to which a loss occurs constitutes Funded Property in part only, the Company may, at its election, obtain the reimbursement of insurance proceeds attributable to the part of such property which constitutes Funded Property under this subsection (b) and obtain the reimbursement of insurance proceeds attributable to the part of such property which does not constitute Funded Property under subsection (c) of this Section 6.7.
(c)                All moneys paid to the Trustee by the Company in accordance with this Section or received by the Trustee as proceeds of any insurance, in either case on account of a loss on or with respect to property which does not constitute Funded Property, shall, subject to the requirements of any other Lien prior hereto upon property subject to the Lien hereof, be held by the Trustee and, subject as aforesaid and provided that no Event of Default shall have occurred and be continuing, shall be paid by it to the Company upon receipt by the Trustee of:
(i)                    a Company Request requesting such payment;
(ii)                  an Expert’s Certificate stating
(A)             that such moneys were paid to or received by the Trustee on account of a loss on or with respect to property which does not constitute Funded Property; and
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(B)              if true, either (I) that the aggregate amount of the Cost or Fair Value to the Company (whichever is less) of all Property Additions which do not constitute Funded Property (excluding, to the extent of such loss, the property on or with respect to which such loss was incurred), after making deductions therefrom and additions thereto of the character contemplated by Section 1.3, is not less than zero (0) or (II) that the amount of such loss does not exceed the aggregate Cost or Fair Value to the Company (whichever is less) of Property Additions acquired, made or constructed on or after the ninetieth (90th) day prior to the date of the Company Request requesting such payment; or
(C)              if neither of the statements contemplated in subclause (B) above can be made, the amount by which zero (0) exceeds the amount referred to in subclause (B)(I) above (showing in reasonable detail the calculation thereof); and
(iii)                if the Expert’s Certificate required by clause (ii) above contains neither of the statements contemplated in clause (ii)(B) above, an amount in cash, to be held by the Trustee as part of the Mortgaged Property, equal to 70% of the amount shown in clause (ii)(C) above.
To the extent that the Company shall be entitled to withdraw proceeds of insurance pursuant to this subsection (c), such proceeds shall be deemed not to constitute Funded Cash.
(d)               Whenever under the provisions of this Section the Company is required to deliver moneys to the Trustee and at the same time shall have satisfied the conditions set forth herein for payment of moneys by the Trustee to the Company, there shall be paid to or retained by the Trustee or paid to the Company, as the case may be, only the net amount.
Section 6.8 Recording, Filing, etc.
The Company shall cause this Indenture and all indentures and instruments supplemental hereto or supplementary hereto which shall be executed pursuant to the provisions hereof to be promptly recorded and filed and re-recorded and re-filed in such manner and in such places, as may be required by law in order fully to preserve and protect the security of the Holders of the Securities and all rights of the Trustee and to perfect and maintain the perfection of any security interest granted to the Trustee hereunder or thereunder, and shall furnish to the Trustee promptly after the execution and delivery of this Indenture, as originally executed and delivered, and of each supplemental indenture, an Opinion of Counsel either stating that in the opinion of such counsel upon proper recording and filing of this Indenture or such supplemental indenture in the real estate records of the relevant jurisdictions, the Lien intended to be created hereby or thereby will become effective and shall be perfected or stating that in the opinion of such counsel no such action is necessary to make such Lien effective or to perfect the same.
The Company shall execute and deliver such supplemental indenture or indentures and such further instruments and do such further acts as may be necessary or proper to carry out the purposes of this Indenture and to make subject to the Lien hereof any property hereafter acquired, made or constructed and intended to be subject to the Lien hereof, and to transfer to any new trustee or trustees or co-trustee or co-trustees, the estate, powers, instruments or funds held in trust hereunder.
This Indenture will be recorded in the following New Jersey counties, which are all of the counties in New Jersey in which the Company owns real property as of the date of the execution of this Indenture: Hunterdon; Mercer; Middlesex; Morris; Sussex; Union; and Warren.
Section 6.9 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in:
(a)                any covenant or restriction specified with respect to the Securities of any one or more series, or any one or more Tranches thereof, as contemplated by Section 3.1, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities with respect to which compliance with such covenant or restriction is to be omitted, considered as one class, shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition;  provided ,  however , that no such waiver shall be effective as to any of the matters contemplated in clause (a), (b), (c) or (d) in Section 14.2 without the consent of the Holders specified in such Section; and
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(b)               Section 6.4, 6.5 or 6.7 or Article 13, if before the time for such compliance the Holders of at least a majority in principal amount of Securities Outstanding under this Indenture shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition;
but, in either case, no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 6.10 Annual Officer’s Certificate as to Compliance.
Within one hundred twenty (120) days after the end of each fiscal year of the Company ending after the date hereof, the Company shall deliver to the Trustee an Officer’s Certificate which need not comply with Section 1.5, executed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, as to such officer’s knowledge of the Company’s compliance with all conditions and covenants under this Indenture, such compliance to be determined (solely for the purpose of this Section 6.10) without regard to any period of grace or requirement of notice under this Indenture.
Article 7
[INTENTIONALLY OMITTED]
 
[Intentionally Omitted.]
 
Article 8
POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY
Section 8.1 Quiet Enjoyment.
Unless one or more Events of Default shall have occurred and be continuing, the Company shall be permitted to possess, use and enjoy the Mortgaged Property (except, to the extent not herein otherwise provided, such cash and securities as are expressly required to be deposited with the Trustee).
Section 8.2 Dispositions without Release.
Unless an Event of Default shall have occurred and be continuing, the Company may at any time and from time to time, without any release or consent by, or report to, the Trustee:
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(a)                sell or otherwise dispose of, free from the Lien of this Indenture, any facilities, machinery, equipment, apparatus, holders, engines, boilers, benches, tanks, pipe lines, connections, service pipes, meters, conduits, tools, instruments, appliances, and all other property or any other fixtures or personalty, then subject to the Lien hereof, which shall have become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable, undesirable or unnecessary for use in the operations of the Company upon replacing the same by, or substituting for the same, similar or analogous property, or other property performing a similar or analogous function or otherwise obviating the need therefor, having a Fair Value to the Company at least equal to that of the property sold or otherwise disposed of and subject to the Lien hereof, subject to no Liens prior hereto except Permitted Liens and any other Liens to which the property sold or otherwise disposed of was subject;
(b)               cancel or make changes or alterations in or substitutions for any and all easements, servitudes, rights-of-way and similar rights and/or interests;
(c)                surrender or assent to the modification of any right, power, franchise, license, governmental consent or permit under which it may be operating, provided that any such surrender or modification which adversely affects the Mortgaged Property, taken as a whole, in any material respect is, in the opinion of any Authorized Officer of the Company (such opinion to be stated in a resolution to be filed with the Trustee), necessary or desirable in the conduct of the business of the Company; and
(d)               grant, free from the Lien of this Indenture, easements, ground leases or rights-of-way in, upon, over and/or across the property or rights-of-way of the Company for the purpose of roads, pipe lines, transmission lines, distribution lines, communication lines, railways, removal of coal or other minerals or timber, and other like purposes, or for the joint or common use of real property, rights-of-way, facilities and/or equipment;  provided ,  however , that such grant shall not materially impair the use of the property or rights-of-way for the purposes for which such property or rights-of-way are held by the Company.
Section 8.3 Release of Funded Property.
Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the Lien hereof, upon receipt by the Trustee of:
(a)                a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
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(b)               an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c)                an Expert’s Certificate made and dated not more than ninety (90) days prior to the date of such Company Order:
(i)                    describing the property to be released;
(ii)                   stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii)                stating the Cost of the property to be released (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(iv)                stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d)               an amount in cash to be held by the Trustee as part of the Mortgaged Property, equal to the amount, if any, by which 70% of the amount referred to in clause (c)(iii) above exceeds the aggregate of the following items:
(i)                   an amount equal to 70% of the aggregate principal amount of any obligations secured by Purchase Money Lien delivered to the Trustee, to be held as part of the Mortgaged Property, subject to the limitations hereafter in this Section 8.3 set forth;
(ii)                   an amount equal to 70% of the Cost or Fair Value to the Company (whichever is less), after making any deductions and any additions pursuant to Section 1.3, of any Property Additions not constituting Funded Property described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 4.2(b), delivered to the Trustee;  provided , however , that the deductions and additions contemplated by Section 1.3 shall not be required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(iii)                the aggregate principal amount of Securities for which the authentication and delivery the Company shall be entitled under the provisions of Section 4.3, by virtue of compliance with all applicable provisions of Section 4.3 (except as hereinafter in this Section otherwise provided);  provided ,  however , that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Securities and, to such extent, no such Securities may thereafter be authenticated and delivered hereunder; and any Securities which were the basis of such right to the authentication and delivery of Securities so waived shall be deemed to have been made the basis of such release of property;
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(iv)                 any amount in cash;
(v)                  the aggregate principal amount of any Outstanding Securities delivered to the Trustee; and
(vi)               any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(e)                if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Securities under Section 4.3, all documents contemplated below in this Section; and
(f)                if the release is on the basis of the delivery to the Trustee or to the trustee or other holder of a prior Lien of obligations secured by a Purchase Money Lien, all documents contemplated below in this Section, to the extent required.
If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as permitted under the provisions of clause (d)(ii) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii) and except as hereafter in this paragraph provided, comply with all applicable provisions of this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Securities equal in principal amount to 70% of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be released which is to be released on the basis of such Property Additions, as shown by the Expert’s Certificate required by clause (c) in the first paragraph of this Section;  provided ,  however , that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall for all purposes of this Indenture be deemed to be the amount stated in the Expert’s Certificate provided for in clause (c) in the first paragraph of this Section to be the Fair Value of the property to be released (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. If and to the extent that the release of property is in whole or in part based upon the right to the authentication and delivery of Securities under Section 4.3 (as permitted under the provisions of clause (d)(ii) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 4.3 relating to such authentication and delivery. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 4.1.
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If the release of property is, in whole or in part, based upon the delivery to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by a Purchase Money Lien (as permitted under the provisions of clause (d)(i) in the first paragraph of this Section), the Company shall deliver to the Trustee:
(a)                an Officer’s Certificate (i) stating that no event has occurred and is continuing which entitles the holder of such Purchase Money Lien to accelerate the maturity of the obligations, if any, outstanding thereunder and (ii) reciting the aggregate principal amount of obligations, if any, then outstanding thereunder in addition to the obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional obligations secured by such Purchase Money Lien are permitted to be issued; and
(b)               an Opinion of Counsel stating that (i) such obligations are valid obligations, entitled to the benefit of such Purchase Money Lien equally and ratably with all other obligations, if any, then outstanding thereunder, and (ii) that such Purchase Money Lien constitutes, or, upon the delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon the property to be released, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the Lien of this Indenture.
Anything herein to the contrary notwithstanding (a) the aggregate principal amount of obligations secured by Purchase Money Liens which may be used pursuant to clause (d)(i) in the first paragraph of this Section as the basis for the release of property from the Lien of this Indenture shall not exceed 75% of the Fair Value of the property to be released, as certified pursuant to clause (c)(ii) in the first paragraph of this Section, and (b) no obligations secured by Purchase Money Liens shall be used as the basis for the release of property hereunder, if the aggregate principal amount of such obligations to be used by the Company pursuant to clause (d)(i) plus the aggregate principal amount used by the Company pursuant to clause (d)(i) in connection with all previous releases of property from the Lien hereof on the basis of obligations secured by a Purchase Money Lien theretofore delivered to and then held by the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture shall, immediately after the release then being applied for, exceed 40% of the sum of the aggregate principal amount of Securities then Outstanding;  provided ,  however , that the limitation set forth in clause (a) above shall not be applicable if no additional obligations are then outstanding, or are permitted to be issued, under the Purchase Money Lien securing such obligations; and  provided ,  further , that there shall not be taken into account for purposes of the calculation contemplated in clause (b) above any obligations secured by Purchase Money Lien with respect to which there shall have been delivered to the Trustee:
(x)       an Officer’s Certificate (i) if any obligations shall then be outstanding under such Purchase Money Lien and/or additional obligations are permitted to be issued thereunder, either (A) stating that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of obligations thereunder on the basis of property additions in a principal amount exceeding 70% of the balance of the cost or fair value of such property additions to the issuer thereof (whichever shall be less) after making deductions and additions similar to those provided for in Section 1.3, or (B) in the event that the statements contained in clause (A) above cannot be made, stating that such issuer has irrevocably waived its right to the authentication and delivery of obligations under such Purchase Money Lien (1) on any basis, in a principal amount equal to the excess of (I) the aggregate principal amount of obligations, if any, then outstanding under such Purchase Money Lien which were issued on the basis of property additions or on the basis of the retirement of obligations which were issued (whether directly or indirectly when considered in light of the successive issuance and retirement of obligations) on the basis of property additions over (II) an amount equal to 70% of the aggregate Dollar amount of property additions certified as the basis for the issuance of such obligations then outstanding and (2) on the basis of property additions, in a principal amount exceeding 70% of the balance of the cost or fair value thereof to such issuer (whichever shall be less) after making deductions and additions similar to those provided for in Section 1.3 and (ii) stating either (A) that the obligations secured by such Purchase Money Lien delivered to the Trustee or to the trustee or other holder of a Lien prior to the Lien of this Indenture as the basis for such release of property contain a provision for mandatory redemption upon the acceleration of the maturity of all Outstanding Securities following an Event of Default (whether or not such redemption may be rescinded upon the rescission of such acceleration) or (B) that so long as such obligations are held by the Trustee or the trustee or other holder of such a prior Lien, an Event of Default under this Indenture constitutes a matured event of default under such Purchase Money Lien ( provided ,  however , that the waiver or cure of such Event of Default hereunder and the rescission and annulment of the consequences thereof may constitute a cure of the corresponding event of default under such Purchase Money Lien and a rescission and annulment of the consequences thereof).
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If (a) any property to be released from the Lien of this Indenture under any provision of this Article (other than Section 8.7) is subject to a Lien prior to the Lien hereof and is to be sold, exchanged, dedicated or otherwise disposed of subject to such prior Lien and (b) after such release, such prior Lien will not be a Lien on any property subject to the Lien hereof, then the Fair Value of such property to be released shall be deemed, for all purposes of this Indenture, to be the value thereof unencumbered by such prior Lien less the principal amount of the indebtedness secured by such prior Lien.
Any Outstanding Securities delivered to the Trustee pursuant to clause (d) in the first paragraph of this Section shall forthwith be canceled by the Trustee. Any cash and/or obligations so deposited with the Trustee, and the proceeds of any such obligations, shall be held as part of the Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.6.
Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section 8.3 and obtain the release of the part of such property which does not constitute Funded Property under Section 8.4. In such event, (a) the application of Property Additions in the release under this Section 8.3 as contemplated in clause (d)(i) in the first paragraph hereof shall be taken into account in clause (v) or clause (vi), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.4 and (b) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole.
Section 8.4 Release of Property Not Constituting Funded Property.
Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which does not constitute Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the Lien hereof, upon receipt by the Trustee of:
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(a)                a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b)               an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c)                an Expert’s Certificate, made and dated not more than ninety (90) days prior to the date of such Company Order:
(i)                     describing the property to be released;
(ii)                   stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii)                  stating the Cost of the property to be released;
(iv)                  stating that the property to be released does not constitute Funded Property;
(v)                  if true, stating either (A) that the aggregate amount of the Cost or Fair Value to the Company (whichever is less) of all Property Additions which do not constitute Funded Property (excluding the property to be released), after making deductions therefrom and additions thereto of the character contemplated by Section 1.3, is not less than zero (0) or (B) that the Cost or Fair Value (whichever is less) of the property to be released does not exceed the aggregate Cost or Fair Value to the Company (whichever is less) of Property Additions acquired, made or constructed on or after the ninetieth (90th) day prior to the date of the Company Order requesting such release;
(vi)                 if neither of the statements contemplated in subclause (v) above can be made, stating the amount by which zero (0) exceeds the amount referred to in subclause (v)(A) above (showing in reasonable detail the calculation thereof); and
(vii)               stating that, in the judgment of the signers, such release will not materially impair the security under this Indenture in contravention of the provisions hereof; and
(d)               if the Expert’s Certificate required by clause (c) above contains neither of the statements contemplated in clause (c)(v) above, an amount in cash, to be held by the Trustee as part of the Mortgaged Property, equal to the amount, if any, by which 70% of the lower of (i) the Cost or Fair Value (whichever shall be less) of the property to be released and (ii) the amount shown in clause (c)(vi) above exceeds the aggregate of items of the character described in subclauses (iii) and (v) of clause (d) in the first paragraph of Section 8.3 then to be used as a credit under this Section 8.4 (subject, however, to the same limitations and conditions with respect to such items as are set forth in Section 8.3).
Section 8.5 Release of Minor Properties.
Notwithstanding the provisions of Sections 8.3 and 8.4, unless an Event of Default shall have occurred and be continuing, the Company may obtain the release from the Lien hereof of any part of the Mortgaged Property, or any interest therein, and the Trustee shall whenever from time to time requested by the Company in a Company Order transmitting therewith a form of instrument to effect such release, and without requiring compliance with any of the provisions of Section 8.3 or 8.4, release from the Lien hereof all the right, title and interest of the Trustee in and to the same provided that the aggregate Fair Value of the property to be so released on any date in a given calendar year, together with all other property released pursuant to this Section 8.5 in such calendar year, shall not exceed the greater of (a) Twenty Million Dollars ($20,000,000) and (b) 3% of the aggregate principal amount of Securities then Outstanding. Prior to the granting of any such release, there shall be delivered to the Trustee (a) an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing and (b) an Expert’s Certificate stating, in the judgment of the signers, the Fair Value of the property to be released, the aggregate Fair Value of all other property theretofore released pursuant to this Section in such calendar year and, as to Funded Property, the Cost thereof (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost), and that, in the judgment of the signers, the release thereof will not impair the security under this Indenture in contravention of the provisions hereof. On or before December 31st of each calendar year, the Company shall deposit with the Trustee an amount in cash equal to 70% of the aggregate Cost of the properties constituting Funded Property so released during such year (or, if the Fair Value to the Company of any particular property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost);  provided ,  however , that no such deposit shall be required to be made hereunder to the extent that cash or other consideration shall, as indicated in an Officer’s Certificate delivered to the Trustee, have been deposited with the trustee or holder of another Lien prior to the Lien of this Indenture in accordance with the provisions thereof; and  provided ,  further , that the amount of cash so required to be deposited may be reduced, at the election of the Company, by the items specified in clause (d) in the first paragraph of Section 8.3, subject to all of the limitations and conditions specified in such Section, to the same extent as if such property were being released pursuant to Section 8.3. Any cash deposited with the Trustee under this Section may thereafter be withdrawn, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.6.
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Section 8.6 Withdrawal or Other Application of Funded Cash.
Subject to the provisions of Section 4.4 and except as hereafter in this Section provided, unless an Event of Default shall have occurred and be continuing, any Funded Cash held by the Trustee, and any other cash which is required to be withdrawn, used or applied as provided in this Section,
(a)                may be withdrawn from time to time by the Company to the extent of an amount equal to 70% of the Cost or the Fair Value to the Company (whichever is less) of Property Additions not constituting Funded Property, after making any deductions and additions pursuant to Section 1.3, described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such withdrawal and complying with clause (ii) and, to the extent applicable, clause (iii) of Section 4.2(b), delivered to the Trustee;  provided ,  however , that the deductions and additions contemplated by Section 1.3 shall not be required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(b)               may be withdrawn from time to time by the Company in an amount equal to the aggregate principal amount of Securities to the authentication and delivery of which the Company shall be entitled under the provisions of Section 4.3 hereof, by virtue of compliance with all applicable provisions of Section 4.3 (except as hereinafter in this Section otherwise provided); provided ,  however , that such withdrawal of cash shall operate as a waiver by the Company of the right to the authentication and delivery of such Securities and, to such extent, no such Securities may thereafter be authenticated and delivered hereunder; and any such Securities which were the basis of such right to the authentication and delivery of Securities so waived shall be deemed to have been made the basis of such withdrawal of cash;
(c)                may be withdrawn from time to time by the Company in an amount equal to the aggregate principal amount of any Outstanding Securities delivered to the Trustee;
(d)               may, upon the request of the Company, be used by the Trustee for the purchase of Securities in the manner, at the time or times, in the amount or amounts, at the price or prices and otherwise as directed or approved by the Company, all subject to the limitations hereafter in this Section set forth; or
(e)                may, upon the request of the Company, be applied by the Trustee to the payment (or provision therefor pursuant to Article 9) at Stated Maturity of any Securities or to the redemption (or similar provision therefor) of any Securities which are, by their terms, redeemable, in each case of such series as may be designated by the Company, any such redemption to be in the manner and as provided in Article 5, all subject to the limitations hereafter in this Section set forth.
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Such moneys shall, from time to time, be paid or used or applied by the Trustee, as aforesaid, upon the request of the Company in a Company Order, and upon receipt by the Trustee of an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing. If and to the extent that the withdrawal of cash is based upon Property Additions (as permitted under the provisions of clause (a) above), the Company shall, subject to the provisions of said clause (a) and except as hereafter in this paragraph provided, comply with all applicable provisions of this Indenture as if such Property Additions were made the basis for the authentication and delivery of Securities equal in principal amount to the cash so to be withdrawn. If and to the extent that the withdrawal of cash is based upon the right to the authentication and delivery of Securities (as permitted under the provisions of clause (b) above), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 4.3 relating to such authentication and delivery. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 4.1.
Notwithstanding the generality of clauses (d) and (e) above, no cash to be applied pursuant to such clauses shall be applied to the payment of an amount in excess of the principal amount of any Securities to be purchased, paid or redeemed except to the extent that the aggregate principal amount of all Securities theretofore, and of all Securities then to be, purchased, paid or redeemed pursuant to such clauses is not less than the aggregate cost for principal of, premium, if any, and accrued interest, if any, on and brokerage commissions, if any, with respect to, such Securities.
Any Outstanding Securities delivered to the Trustee pursuant to clause (c) in the first paragraph of this Section shall forthwith be canceled by the Trustee.
Any obligations secured by Purchase Money Lien delivered to the Trustee in consideration of the release of property from the Lien of this Indenture, together with any evidence of such Purchase Money Lien held by the Trustee, shall be released from the Lien of this Indenture and delivered to or upon the order of the Company upon payment by the Company to the Trustee of an amount in cash equal to the aggregate principal amount of such obligations less the aggregate amount theretofore paid to the Trustee (by the Company, the obligor or otherwise) in respect of the principal of such obligations.
The principal of and interest on any such obligations secured by a Purchase Money Lien held by the Trustee shall be held by the Trustee as and when the same are received by the Trustee. The interest received by the Trustee on any such obligations shall be deemed not to constitute Funded Cash and shall be remitted to the Company;  provided ,  however , that if an Event of Default shall have occurred and be continuing, such proceeds shall be held as part of the Mortgaged Property until such Event of Default shall have been cured or waived.
The Trustee shall have and may exercise all the rights and powers of any owner of such obligations and of all substitutions therefor and, without limiting the generality of the foregoing, may collect and receive all insurance moneys payable to it under any of the provisions thereof and apply the same in accordance with the provisions thereof, may consent to extensions thereof at a higher or lower rate of interest, may join in any plan or plans of voluntary or involuntary reorganization or readjustment or rearrangement and may accept and hold hereunder new obligations, stocks or other securities issued in exchange therefor under any such plan. Any discretionary action which the Trustee may be entitled to take in connection with any such obligations or substitutions therefor shall be taken, so long as no Event of Default shall have occurred and be continuing, in accordance with a Company Order, and, during the continuance of an Event of Default, in its own discretion.
Anything herein to the contrary notwithstanding, the Company may irrevocably waive all right to the withdrawal pursuant to this Section of, and any other rights with respect to, any obligations secured by Purchase Money Lien held by the Trustee, and the proceeds of any such obligations, by delivery to the Trustee of a Company Order:
(a)                specifying such obligations and stating that the Company thereby waives all rights to the withdrawal thereof and of the proceeds thereof pursuant to this Section, and any other rights with respect thereto; and
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(b)               directing that the principal of such obligations be applied as provided in clause (e) in the first paragraph of this Section, specifying the Securities to be paid or redeemed or for the payment or redemption of which payment is to be made.
Following any such waiver, the interest on any such obligations shall be applied to the payment of interest, if any, on the Securities to be paid or redeemed or for the payment or redemption of which provision is to be made, as specified in the aforesaid Company Order, as and when such interest shall become due from time to time, and any excess funds remaining from time to time after such application shall be applied to the payment of interest on any other Securities as and when the same shall become due. Pending any such application, the interest on such obligations shall be invested in Investment Securities. The principal of any such obligations shall be applied solely to the payment of principal of the Securities to be paid or redeemed or for the payment or redemption of which provision is to be made, as specified in the aforesaid Company Order. Pending such application, the principal of such obligations shall be invested in Eligible Obligations. The obligation of the Company to pay the principal of such Securities when the same shall become due at maturity, shall be offset and reduced by the amount of the proceeds of such obligations then held, and to be applied, by the Trustee in accordance with this paragraph.
Section 8.7 Release of Property Taken by Eminent Domain, etc.
Should any of the Mortgaged Property, or any interest therein, be taken by exercise of the power of eminent domain or be sold to an entity possessing the power of eminent domain under a threat to exercise the same, and should the Company elect not to obtain the release of such property pursuant to other provisions of this Article, the Trustee shall, upon request of the Company evidenced by a Company Order transmitting therewith a form of instrument to effect such release, release from the Lien hereof all its right, title and interest in and to the property so taken or sold (or with respect to an interest in property, subordinate the Lien hereof to such interest), upon receiving (a) an Opinion of Counsel to the effect that such property has been taken by exercise of the power of eminent domain or has been sold to an entity possessing the power of eminent domain under threat of an exercise of such power, (b) an Officer’s Certificate stating the amount of net proceeds received or to be received for such property so taken or sold, and the amount so stated shall be deemed to be the Fair Value of such property for the purpose of any notice to the Holders of Securities, (c) if any portion of such property constitutes Funded Property, an Expert’s Certificate stating the Cost thereof (or, if the Fair Value to the Company of such portion of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost) and (d) if any portion of such property constitutes Funded Property, a deposit by the Company of an amount in cash equal to 70% of the Cost or Fair Value stated in the Expert’s Certificate delivered pursuant to clause (c) above;  provided , however , that the amount required to be so deposited shall not exceed the portion of the net proceeds received or to be received for such property so taken or sold which is allocable on a pro-rata or other reasonable basis to the portion of such property constituting Funded Property; and  provided ,  further , that no such deposit shall be required to be made hereunder if the proceeds of such taking or sale shall, as indicated in an Officer’s Certificate delivered to the Trustee, have been deposited with the trustee or holder of other Liens prior to the Lien of this Indenture. Any cash deposited with the Trustee under this Section may thereafter be withdrawn, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.6.
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Section 8.8 Disclaimer or Quitclaim.
In case the Company has sold, exchanged, dedicated or otherwise disposed of, or has agreed or intends to sell, exchange, dedicate or otherwise dispose of, or a Governmental Authority has ordered the Company to divest itself of, any Excepted Property or any other property not subject to the Lien hereof, or the Company desires to disclaim or quitclaim title to property to which the Company does not purport to have title, the Trustee shall, from time to time, disclaim or quitclaim such property upon receipt by the Trustee of the following:
(a)                a Company Order requesting such disclaimer or quitclaim and transmitting therewith a form of instrument to effect such disclaimer or quitclaim;
(b)               an Officer’s Certificate describing the property to be disclaimed or quitclaimed; and
(c)                an Opinion of Counsel stating the signer’s opinion that such property is not subject to the Lien hereof or required to be subject thereto by any of the provisions hereof.
Section 8.9 Miscellaneous.
(a)                The Expert’s Certificate as to the Fair Value of property to be released from the Lien of this Indenture in accordance with any provision of this Article, and as to the nonimpairment, by reason of such release, of the security under this Indenture in contravention of the provisions hereof, shall be made by an Independent Expert if the Fair Value of such property and of all other property released since the commencement of the then current calendar year, as set forth in the certificates required by this Indenture, is 10% or more of the aggregate principal amount of the Securities at the time Outstanding; but such Expert’s Certificate shall not be required to be made by an Independent Expert in the case of any release of property if the Fair Value thereof, as set forth in the certificates required by this Indenture, is less than Twenty-Five Thousand Dollars ($25,000) or less than 1% of the aggregate principal amount of the Securities at the time Outstanding. To the extent that the Fair Value of any property to be released from the Lien of this Indenture shall be stated in an Independent Expert’s Certificate, such Fair Value shall not be required to be stated in any other Expert’s Certificate delivered in connection with such release.
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(b)               No release of property from the Lien of this Indenture effected in accordance with the provisions, and in compliance with the conditions, set forth in this Article and in Sections 1.4, 1.5 and 1.6 shall be deemed to impair the security of this Indenture in contravention of any provision hereof.
(c)                If the Mortgaged Property shall be in the possession of a receiver or trustee, lawfully appointed, the powers hereinbefore conferred upon the Company with respect to the release of any part of the Mortgaged Property or any interest therein or the withdrawal of cash may be exercised, with the approval of the Trustee, by such receiver or trustee, notwithstanding that an Event of Default may have occurred and be continuing, and any request, certificate, appointment or approval made or signed by such receiver or trustee for such purposes shall be as effective as if made by the Company or any of its officers or appointees in the manner herein provided; and if the Trustee shall be in possession of the Mortgaged Property under any provision of this Indenture, then such powers may be exercised by the Trustee in its discretion notwithstanding that an Event of Default may have occurred and be continuing.
(d)               If the Company shall retain any interest in any property released from the Lien of this Indenture as provided in Section 8.3, 8.4 or 8.5, this Indenture shall not become or be, or be required to become or be, a Lien upon such property or such interest therein or any improvements, extensions or additions to such property or renewals, replacements or substitutions of or for such property or any part or parts thereof unless the Company shall execute and deliver to the Trustee an indenture supplemental hereto, in recordable form, containing a grant, conveyance, transfer and mortgage thereof. As used in this subsection, the terms “improvements,” “extensions” and “additions” shall be limited as set forth in Section 13.1.
(e)                Notwithstanding the occurrence and continuance of an Event of Default, the Trustee, in its discretion, may release from the Lien hereof any part of the Mortgaged Property or permit the withdrawal of cash, upon compliance with the other conditions specified in this Article in respect thereof.
(f)                No purchaser or grantee of property purporting to have been released hereunder shall be bound to ascertain the authority of the Trustee to execute the release, or to inquire as to any facts required by the provisions hereof for the exercise of such authority; nor shall any purchaser or grantee of any property or rights permitted by this Article to be sold, granted, exchanged, dedicated or otherwise disposed of, be under obligation to ascertain or inquire into the authority of the Company to make any such sale, grant, exchange, dedication or other disposition.
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Article 9
SATISFACTION AND DISCHARGE
Section 9.1 Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal amount thereof, shall be deemed to have been paid for all purposes of this Indenture, and the entire indebtedness of the Company in respect thereof shall be satisfied and discharged, if there shall have been irrevocably deposited with the Trustee or any Paying Agent (other than the Company), in trust:
(a)                money (including Funded Cash not otherwise applied pursuant to Section 8.6) in an amount which shall be sufficient, or
(b)               in the case of a deposit made prior to the Maturity of such Securities or portions thereof, Eligible Obligations, which shall not contain provisions permitting the redemption or other prepayment thereof at the option of the issuer thereof, the principal of and the interest on which when due, without any regard to reinvestment thereof, will provide moneys which, together with the money, if any, deposited with or held by the Trustee or such Paying Agent, shall be sufficient, or
(c)                a combination of (a) and (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due and to become due on such Securities or portions thereof;  provided ,  however , that in the case of the provision for payment or redemption of less than all the Securities of any series or Tranche, such Securities or portions thereof shall have been selected by the Security Registrar as provided herein and, in the case of a redemption, the notice requisite to the validity of such redemption shall have been given or irrevocable authority shall have been given by the Company to the Trustee to give such notice, under arrangements reasonably satisfactory to the Trustee; and  provided ,  further , that the Company shall have delivered to the Trustee and such Paying Agent:
(x)       if such deposit shall have been made prior to the Maturity of such Securities, a Company Order stating that the money and Eligible Obligations deposited in accordance with this Section shall be held in trust, as provided in Section 9.3;
(y)       if Eligible Obligations shall have been deposited, an Opinion of Counsel to the effect that such obligations constitute Eligible Obligations and do not contain provisions permitting the redemption or other prepayment thereof at the option of the issuer thereof, and an opinion of an Independent public Accountant of nationally recognized standing, selected by the Company, to the effect that the other requirements set forth in clause (b) above have been satisfied; and
(z)       if such deposit shall have been made prior to the Maturity of such Securities, an Officer’s Certificate stating the Company’s intention that, upon delivery of such Officer’s Certificate, its indebtedness in respect of such Securities or portions thereof will have been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in accordance with this Section, together with the documents required by clauses (x), (y) and (z) above, as applicable, the Trustee shall, upon Company Request, acknowledge in writing that such Securities or portions thereof are deemed to have been paid for all purposes of this Indenture and that the entire indebtedness of the Company in respect thereof has been satisfied and discharged as contemplated in this Section. In the event that all of the conditions set forth in the preceding paragraph shall have been satisfied in respect of any Securities or portions thereof except that, for any reason, the Officer’s Certificate specified in clause (z) (if otherwise required) shall not have been delivered, such Securities or portions thereof shall nevertheless be deemed to have been paid for all purposes of this Indenture, and the Holders of such Securities or portions thereof shall nevertheless be no longer entitled to the benefit of the Lien of this Indenture or of any of the covenants of the Company under Article 6 (except the covenants contained in Sections 6.2 and 6.3) or any other covenants made in respect of such Securities or portions thereof as contemplated by Section 3.1, but the indebtedness of the Company in respect of such Securities or portions thereof shall not be deemed to have been satisfied and discharged prior to Maturity for any other purpose; and, upon Company Request, the Trustee shall acknowledge in writing that such Securities or portions thereof are deemed to have been paid for all purposes of this Indenture.
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If payment at Stated Maturity of less than all of the Securities of any series, or any Tranche thereof, is to be provided for in the manner and with the effect provided in this Section, the Security Registrar shall select such Securities, or portions of principal amount thereof, in the manner specified by Section 5.3 for selection for redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have been paid for purposes of this Indenture, and, if such is the case, in respect of which the Company’s indebtedness shall have been satisfied and discharged, all as provided in this Section, do not mature and are not to be redeemed within the sixty (60)-day period commencing with the date of the deposit of moneys or Eligible Obligations, as aforesaid, the Company shall, as promptly as practicable, give a notice, in the same manner as a notice of redemption with respect to such Securities, to the Holders of such Securities to the effect that such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid for purposes of this Indenture, as aforesaid, the obligations of the Company and the Trustee in respect of such Securities under Sections 3.4, 3.5, 3.6, 5.4, 6.2, 6.3, 11.7 and 11.15 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying Agent with which Eligible Obligations shall have been deposited as provided in this Section against, any tax, fee or other charge imposed on or assessed against such Eligible Obligations or the principal or interest received in respect of such Eligible Obligations, including, but not limited to, any such tax payable by any entity deemed, for tax purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time after a Security would be deemed to have been paid for purposes of this Indenture, and, if such is the case, the Company’s indebtedness in respect thereof would be deemed to have been satisfied and discharged, pursuant to this Section (without regard to the provisions of this paragraph), the Trustee or any Paying Agent, as the case may be, shall be required to return the money or Eligible Obligations, or combination thereof, deposited with it as aforesaid to the Company or its representative under any applicable Federal or State bankruptcy, insolvency or other similar law, such Security shall thereupon be deemed retroactively not to have been paid and any satisfaction and discharge of the Company’s indebtedness in respect thereof shall retroactively be deemed not to have been effected, and such Security shall be deemed to remain Outstanding and (b) any satisfaction and discharge of the Company’s indebtedness in respect of any Security shall be subject to the provisions of the last paragraph of Section 6.3.
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Section 9.2 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as hereinafter expressly provided), and the Trustee, on demand of and at the expense of the Company, shall execute such proper instruments as the Company shall reasonably request to evidence and acknowledge the satisfaction and discharge of this Indenture, when:
(a)                no Securities remain Outstanding hereunder; and
(b)               the Company has paid or caused to be paid all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section 9.1, any Security, previously deemed to have been paid for purposes of this Indenture, shall be deemed retroactively not to have been so paid, this Indenture shall thereupon be deemed retroactively not to have been satisfied and discharged, as aforesaid, and to remain in full force and effect, and the Company shall execute and deliver such instruments as the Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as aforesaid, the obligations of the Company and the Trustee under Sections 3.4, 3.5, 3.6, 5.4, 6.2, 6.3, 11.7 and 11.15 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided in this Section, the Trustee shall release, quit claim and otherwise turn over to the Company the Mortgaged Property (other than money and Eligible Obligations held by the Trustee pursuant to Section 9.3) and shall execute and deliver to the Company such deeds and other instruments as, in the judgment of the Company, shall be necessary, desirable or appropriate to effect or evidence such release and quitclaim and the satisfaction and discharge of this Indenture.
Section 9.3 Application of Trust Money.
Neither the Eligible Obligations nor the money deposited pursuant to Section 9.1, nor the principal or interest payments on any such Eligible Obligations, shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of and premium, if any, and interest, if any, on the Securities or portions of principal amount thereof in respect of which such deposit was made, all subject, however, to the provisions of Section 6.3;  provided ,  however , that any cash received from such principal or interest payments on such Eligible Obligations, if not then needed for such purpose, shall, to the extent practicable and upon Company Request be invested in Eligible Obligations of the type described in clause (b) in the first paragraph of Section 9.1 maturing at such times and in such amounts as shall be sufficient, together with any other moneys and the proceeds of any other Eligible Obligations then held by the Trustee, to pay when due the principal of and premium, if any, and interest, if any, due and to become due on such Securities or portions thereof on and prior to the Maturity thereof, and interest earned from such reinvestment shall be paid over to the Company as received, free and clear of the Lien of this Indenture, except the Lien provided by Section 11.7; and  provided ,  further , that any moneys held in accordance with this Section on the Maturity of all such Securities in excess of the amount required to pay the principal of and premium, if any, and interest, if any, then due on such Securities shall be paid over to the Company free and clear of the Lien of this Indenture, except the Lien provided by Section 11.7; and  provided ,  further , that if an Event of Default shall have occurred and be continuing, moneys to be paid over to the Company pursuant to this Section shall be held as part of the Mortgaged Property until such Event of Default shall have been waived or cured.
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Article 10
EVENTS OF DEFAULT; REMEDIES
Section 10.1 Events of Default.
“Event of Default,” wherever used herein with respect to the Securities or any series or Tranche, means any of the following events which shall have occurred and be continuing:
(a)                failure to pay interest, if any, on any Security or any series or Tranche, if applicable, within sixty (60) days after the same becomes due and payable; or
(b)               failure to pay the principal of or premium, if any, on any Security or any series or Tranche, if applicable, on or before its Maturity; or
(c)                failure to perform or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in the performance of which or breach of which is elsewhere in this Section specifically dealt with) for a period of sixty (60) days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Securities then Outstanding, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a  “Notice of Default”  hereunder, unless the Trustee, or the Trustee and the Holders of a principal amount of Securities not less than the principal amount of Securities the Holders of which gave such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration;  provided ,  however , that the Trustee, or the Trustee and the Holders of such principal amount of Securities, as the case may be, shall be deemed to have agreed to an extension of such period if corrective action is initiated by the Company within such period and is being diligently pursued; or
(d)               the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition by one or more Persons other than the Company seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Company or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or
(e)                the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in a case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of such action .
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Notwithstanding the foregoing provisions of this Section 10.1, if the principal or premium, if any, or interest, if any, on any Securities is payable in a currency other than the currency of the United States and such currency is not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders by making such payment in the currency of the United States in an amount equal to the currency of the United States equivalent of the amount payable in such other currency, as determined by the Company by reference to the noon buying rate in New York City for cable transfers for such currency (“ Exchange Rate ”), as such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 10.1, any payment made under such circumstances in the currency of the United States where the required payment is in a currency other than the currency of the United States will not constitute an Event of Default under this Indenture.
Section 10.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred under Section 10.1(d) or Section 10.1(e), the principal amount of the Securities then Outstanding will be due and payable immediately without notice.
If an Event of Default shall have occurred under Section 10.1(a), (b), or (c) and be continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Securities then Outstanding may declare the principal amount (or, if any of the Securities are Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof as contemplated by Section 3.1) of all Securities then Outstanding to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon such declaration such principal amount (or specified amount), together with premium, if any, and accrued interest, if any, thereon, shall become immediately due and payable.
At any time after such a declaration of acceleration of the maturity of the Securities then Outstanding shall have been made, but before any sale of any of the Mortgaged Property has been made and before a judgment or decree for payment of the money due shall have been obtained by the Trustee as provided in this Article, the Event or Events of Default giving rise to such declaration of acceleration shall, without further act, be deemed to have been cured, and such declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled, if
(a)                the Company shall have paid or deposited with the Trustee a sum sufficient to pay:
(i)                     all overdue interest, if any, on all Securities then Outstanding;
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(ii)                    the principal of and premium, if any, on any Securities then Outstanding which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities; and (iii)
(iii)                  all amounts due to the Trustee under Section 11.7;
and
(b)               any other Event or Events of Default, other than the non-payment of the principal of Securities which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 10.17.
No such rescission shall affect any subsequent Event of Default or impair any right consequent thereon.
Section 10.3 Entry upon Mortgaged Property.
If an Event of Default shall have occurred and be continuing, the Company, upon demand of the Trustee and if and to the extent permitted by law, shall forthwith surrender to the Trustee the actual possession of, and the Trustee, by such officers or agents as it may (but in no event shall be required to) appoint, may enter upon and take possession of, the Mortgaged Property; and the Trustee may (but in no event shall be required to) hold, operate and manage the Mortgaged Property and make all needful repairs and such renewals, replacements, betterments and improvements as to the Trustee shall seem prudent; and the Trustee may receive the rents, issues, profits, revenues and other income of the Mortgaged Property, to the extent, if any, that the same shall not then constitute Excepted Property; and, after deducting the reasonable costs and expenses of entering, taking possession, holding, operating and managing the Mortgaged Property, as well as payments for insurance and taxes and other proper charges upon the Mortgaged Property prior to the Lien of this Indenture and reasonable compensation to itself, its agents and counsel, the Trustee may apply the same as provided in Section 10.7. Whenever all that is then due in respect of the principal of and premium, if any, and interest, if any, on the Securities and under any of the terms of this Indenture shall have been paid and all defaults hereunder shall have been cured or shall have been waived as provided in Section 10.17, the Trustee shall surrender possession of the Mortgaged Property to the Company.
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Section 10.4 Power of Sale; Suits for Enforcement.
If an Event of Default shall have occurred and be continuing, the Trustee, by such officers or agents as it shall appoint, with or without entry, in its discretion may, subject to the provisions of Section 10.16 and if and to the extent permitted by law:
(a)                sell, subject to any mandatory requirements of applicable law, the Mortgaged Property as an entirety, or in such parcels as the Holders of a majority in principal amount of the Securities then Outstanding shall in writing request, or in the absence of such request, as the Trustee may determine, to the highest bidder at public auction at such place and at such time (which sale may be adjourned by the Trustee from time to time in its discretion by announcement at the time and place fixed for such sale, without further notice) and upon such terms as the Trustee may fix and briefly specify in a notice of sale to be published once in each week for four successive weeks prior to such sale in an Authorized Publication in each Place of Payment for the Securities of each series; or
(b)               proceed to protect and enforce its rights and the rights of the Holders of Securities under this Indenture by sale pursuant to judicial proceedings or by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Indenture or in aid of the execution of any power granted in this Indenture or for the foreclosure of this Indenture or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel, shall deem most effectual to protect and enforce any of the rights of the Trustee or the Holders of Securities.
Section 10.5 Incidents of Sale.
Upon any sale of any of the Mortgaged Property, whether made under the power of sale hereby given or pursuant to judicial proceedings, to the extent permitted by law:
(a)                the principal amount (or, if any of the Securities are Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof as contemplated by Section 3.1) of all Outstanding Securities, if not previously due, shall at once become and be immediately due and payable, together with premium, if any, and accrued interest, if any, thereon;
(b)               any Holder or Holders of Securities or the Trustee may bid for and purchase the property offered for sale, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property, without further accountability, and may, in paying the purchase money therefor, deliver any Outstanding Securities or claims for interest thereon in lieu of cash to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon, and such Securities, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Holders thereof after being appropriately stamped to show partial payment;
(c)                the Trustee may make and deliver to the purchaser or purchasers a good and sufficient deed, bill of sale and instrument of assignment and transfer of the property sold;
(d)               the Trustee is hereby irrevocably appointed the true and lawful attorney of the Company, in its name and stead, to make all necessary deeds, bills of sale and instruments of assignment and transfer of the property so sold; and for that purpose it may execute all necessary deeds, bills of sale and instruments of assignment and transfer, and may substitute one or more persons, firms or corporations with like power, the Company hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof; but, if so requested by the Trustee or by any purchaser, the Company shall ratify and confirm any such sale or transfer by executing and delivering to the Trustee or to such purchaser or purchasers all proper deeds, bills of sale, instruments of assignment and transfer and releases as may be designated in any such request;
(e)                all right, title, interest, claim and demand whatsoever, either at law or in equity or otherwise, of the Company of, in and to the property so sold shall be divested and such sale shall be a perpetual bar both at law and in equity against the Company, its successors and assigns, and against any and all persons claiming or who may claim the property sold or any part thereof from, through or under the Company; and
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(f)                the receipt of the Trustee or of the officer making such sale shall be a sufficient discharge to the purchaser or purchasers at such sale for his or their purchase money and such purchaser or purchasers and his or their assigns or personal representatives shall not, after paying such purchase money and receiving such receipt, be obliged to see to the application of such purchase money, or be in anywise answerable for any loss, misapplication or non-application thereof.
Section 10.6 Collection of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default described in clause (a) or (b) of Section 10.1 shall have occurred and be continuing, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of the Securities with respect to which such Event of Default shall have occurred, the whole amount then due and payable on such Securities for principal and premium, if any, and interest, if any, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 11.7.
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
The Trustee shall, to the extent permitted by law, be entitled to sue and recover judgment as aforesaid either before, during or after the pendency of any proceedings for the enforcement of the Lien of this Indenture, and in case of a sale of the Mortgaged Property or any part thereof and the application of the proceeds of sale as aforesaid, the Trustee, in its own name and as trustee of an express trust, shall be entitled to enforce payment of, and to receive, all amounts then remaining due and unpaid upon the Securities then Outstanding for principal, premium, if any, and interest, if any, for the benefit of the Holders thereof, and shall be entitled to recover judgment for any portion of the same remaining unpaid, with interest as aforesaid. No recovery of any such judgment by the Trustee and no levy of any execution upon any such judgment upon any of the Mortgaged Property or any other property of the Company shall affect or impair the Lien of this Indenture upon the Mortgaged Property or any part thereof or any rights, powers or remedies of the Trustee hereunder, or any rights, powers or remedies of the Holders of the Securities.
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Section 10.7 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article, including any rents, issues, profits, revenues and other income collected pursuant to Section 10.3 (after the deductions therein provided) and any proceeds of any sale (after deducting the costs and expenses of such sale, including a reasonable compensation to the Trustee, its agents and counsel, and any taxes, assessments or Liens prior to the Lien of this Indenture, except any thereof subject to which such sale shall have been made), whether made under any power of sale herein granted or pursuant to judicial proceedings, and any money collected by the Trustee under Section 8.6, together with, in the case of an entry or sale or as otherwise provided herein, any other sums then held by the Trustee as part of the Mortgaged Property or, after the occurrence of an Event of Default that is continuing, any money or other property distributable in respect of the Company’s obligations under this Indenture, shall be applied in the following order, to the extent permitted by law, at the date or dates fixed by the Trustee and, in case of the distribution of such money or other property on account of principal or premium, if any, or interest, if any, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee (including any predecessor Trustee) under Section 11.7;
Second: To the payment of the whole amount then due and unpaid upon the Outstanding Securities for principal and premium, if any, and interest, if any, in respect of which or for the benefit of which such money has been collected; and in case such proceeds shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal and interest, if any, thereon without any preference or priority, ratably according to the aggregate amount so due and unpaid, with any balance then remaining to the payment of premium, if any, and, if so specified as contemplated by Section 3.1 with respect to the Securities of any series, or any Tranche thereof, interest, if any, on overdue premium, if any, and overdue interest, if any, ratably as aforesaid, all to the extent permitted by applicable law;  provided ,  however , that any money collected by the Trustee pursuant to Section 8.6 in respect of interest or pursuant to Section 10.3 shall first be applied to the payment of interest accrued on the principal of Outstanding Securities;
Third: To the payment of all other amounts due to the Holders of the Securities; and
Fourth: To the payment of the remainder, if any, to the Company or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
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Section 10.8 Receiver.
If an Event of Default shall have occurred and, during the continuance thereof, the Trustee shall have commenced judicial proceedings to enforce any right under this Indenture, the Trustee shall, to the extent permitted by law, be entitled, as against the Company, without notice or demand and without regard to the adequacy of the security for the Securities or the solvency of the Company, to the appointment of a receiver of the Mortgaged Property.
Section 10.9 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a)                to file and prove a claim for the whole amount of principal, premium, if any, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for amounts due to the Trustee under Section 11.7) and of the Holders allowed in such judicial proceeding, and
(b)               to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amounts due it under Section 11.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 10.10 Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or on the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
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Section 10.11 Limitation on Suits.
No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a)                such Holder shall have previously given written notice to the Trustee of a continuing Event of Default;
(b)               the Holders of not less than a majority in aggregate principal amount of the Securities then Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)                such Holder or Holders shall have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(d)               the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such proceeding; and
(e)                no direction inconsistent with such written request shall have been given to the Trustee during such sixty (60)-day period by the Holders of a majority in aggregate principal amount of the Securities then Outstanding;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the Lien of this Indenture or the rights of any other of such Holders or to obtain or to seek to obtain priority or preference over any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such actions or forbearances are unduly prejudicial to such Holders) or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 10.12 Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium, if any, and (subject to Section 3.7) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 10.13 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and such Holder shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and such Holder shall continue as though no such proceeding had been instituted.
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Section 10.14 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Anything in this Article to the contrary notwithstanding, the availability of the remedies set forth herein (on an individual or cumulative basis) and the procedures set forth herein relating to the exercise thereof shall be subject to (a) the law (including, for purposes of this paragraph, general principles of equity) of any jurisdiction wherein the Mortgaged Property or any part thereof is located to the extent that such law is mandatorily applicable and (b) the rights of the holder of any Lien prior to the Lien of this Indenture, and, if and to the extent that any provision of this Article conflicts with any provision of such applicable law and/or with the rights of the holder of any such prior Lien, such provision of law and/or the rights of such holder shall control.
Section 10.15 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 10.16 Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing, the Holders of not less than a majority in principal amount of the Securities then Outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee;  provided ,  however , that
(a)                such direction shall not be in conflict with any rule of law or with this Indenture, and could not involve the Trustee in personal liability in circumstances where indemnity would not, in the Trustee’s sole discretion, be adequate, and
(b)               the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 10.17 Waiver of Past Defaults.
Before any sale of any of the Mortgaged Property and before a judgment or decree for payment of the money due shall have been obtained by the Trustee as in this Article provided, the Holders of not less than a majority in principal amount of the Securities then Outstanding may on behalf of the Holders of all the Securities then Outstanding waive any past default hereunder and its consequences, except a default:
(a)                in the payment of the principal of or premium, if any, or interest, if any, on any Security Outstanding, or
(b)               in respect of a covenant or provision hereof which under Section 14.2 cannot be modified or amended without the consent of the Holder of each Outstanding Security of any series or Tranche affected.
Upon any such waiver, such default shall cease to exist, and any and all Events of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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Section 10.18 Undertaking for Costs.
The Company and the Trustee agree, and each Holder of Securities by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Securities then Outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or premium, if any, or interest, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
Section 10.19 Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, the Company shall not at any time set up, claim or otherwise seek to take the benefit or advantage of any appraisement, valuation, stay, extension or redemption law, now or hereafter in effect, in order to prevent or hinder the enforcement of this Indenture or the absolute sale of the Mortgaged Property, or any part thereof, or the possession thereof, or any part thereof, by any purchaser at any sale under this Article; and the Company, for itself and all who may claim under it, so far as it or they now or hereafter may lawfully do so, hereby waives the benefit of all such laws. The Company, for itself and all who may claim under it, waives, to the extent that it may lawfully do so, all right to have the Mortgaged Property marshalled upon any foreclosure of the Lien hereof, and agrees that any court having jurisdiction to foreclose the Lien of this Indenture may order the sale of the Mortgaged Property as an entirety.
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Article 11
THE TRUSTEE
Section 11.1 Certain Duties and Responsibilities.
(a)                Except during the continuance of an Event of Default,
(i)                     the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)                   in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(b)               In case an Event of Default shall have occurred and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c)                No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)                    this subsection shall not be construed to limit the effect of subsections (a) and (d) of this Section;
(ii)                 the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)                 the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities, as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d)               No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e)                Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(f)                The Trustee shall have and be subject to all the duties and responsibilities specified with respect to an indenture trustee in the Trust Indenture Act.
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Section 11.2 Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder in the manner and to the extent required to do so by the Trust Indenture Act, unless such default shall have been cured or waived;  provided ,  however , that in the case of any default of the character specified in Section 10.1(c), no such notice to Holders shall be given until at least ninety (90) days after the occurrence thereof. For the purpose of this Section, the term  “default”  means any event which is, or after notice or lapse of time, or both, would become, an Event of Default.
Section 11.3 Certain Rights of Trustee.
Subject to the provisions of Section 11.1 and to the applicable provisions of the Trust Indenture Act:
(a)                the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b)               any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, or as otherwise expressly provided herein, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c)                whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence is specifically prescribed herein) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate;
(d)               the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e)                the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any Holder pursuant to this Indenture, unless such Holder shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f)                the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall (subject to applicable legal requirements) be entitled to examine, during normal business hours, the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company for any such reasonable out-of-pocket expenses incurred and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g)               the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h)               the Trustee shall not be charged with knowledge or notice of any default or Event of Default, as the case may be, unless a Responsible Officer of the Trustee shall have received written notice of such default or Event of Default, as the case may be, at the Corporate Trust Office of the Trustee from the Company or from any Holder of such Securities;
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(i)                 the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;
(j)                 the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k)               the Trustee shall not be personally liable, in case of entry by it upon the Mortgaged Property, for debts contracted or liabilities or damages reasonably incurred in the management or operation of the Mortgaged Property;
(l)                 in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and
(m)             the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
Section 11.4 Not Responsible for Recitals or Issuance of Securities or Application of Proceeds.
The recitals contained herein and in the Securities (except the Trustee’s certificate of authentication on the Securities) shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the value or condition of the Mortgaged Property or any part thereof, or as to the title of the Company thereto or as to the security afforded thereby or hereby, or as to the validity, sufficiency or genuineness of any securities at any time pledged and deposited with the Trustee hereunder, or as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof or of any money paid to the Company or upon Company Order under any provision hereof.
The Trustee shall not be responsible to make any calculation with respect to any matter under this Indenture. The Trustee shall have no duty to monitor or investigate the Company’s compliance with or the breach of, or cause to be performed or observed, any representation, warranty, or covenant, or agreement of any Person, other than the Trustee, made in this Indenture. The Trustee shall have no responsibility to make or to see to the making of any recording, filing or registration of any instrument or notice (including any mortgage or financing or continuation statement or any tax or securities form) (or any rerecording, refiling or reregistration of any thereof) at any time in any public office or elsewhere for the purpose of perfecting, maintaining the perfection of or otherwise making effective the Lien of this Indenture or for any other purpose and shall have no responsibility for seeing to the insurance on the Mortgaged Property or for paying any taxes relating to the Mortgaged Property or for otherwise maintaining the Mortgaged Property, including, but not limited to, attending to any environmental matters in respect thereof or disposing of any hazardous or other wastes located thereon, or of otherwise causing or ascertaining compliance by the Company of any of its obligations hereunder.
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Section 11.5 May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 11.8 and 11.13, may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or other agent.
Section 11.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds, except to the extent required by law. The Trustee shall be under no liability for interest on or investment of any money received by it hereunder except as expressly provided herein or otherwise agreed with, and for the sole benefit of, the Company.
Section 11.7 Compensation and Reimbursement.
The Company shall:
(a)                pay to the Trustee from time to time such compensation for all services rendered by it hereunder in such amounts as the Company and Trustee shall agree to in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b)               except as otherwise expressly provided herein, reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent that any such expense, disbursement or advance may be attributable to its negligence, willful misconduct or bad faith; and
(c)                indemnify each of the Trustee or any predecessor Trustee and their respective officers, agents, directors and employees for, and hold them harmless from and against any and all loss, liability, claim, damage or expense, including out-of-pocket fees and expenses of counsel and taxes (other than taxes based upon, measured by or determined by the income of the such indemnified Person), reasonably incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder or the exercise or performance of its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section.
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As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien (the “ Trustee’s Lien ”) secured by this Indenture prior to the Securities upon the Mortgaged Property and upon all other property and funds held or collected by the Trustee as such, other than property and funds held in trust under Section 9.3 (except moneys payable to the Company as provided in Section 9.3).  “Trustee”  for purposes of this Section shall include any predecessor Trustee;  provided ,  however , that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
In addition and without prejudice to the rights provided to the Trustee under any of the provisions of this Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 10.1(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section 11.7 shall survive the termination of this Indenture for any reason, the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
Section 11.8 Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either eliminate such conflicting interest or resign to the extent, in the manner and with the effect, and subject to the conditions, provided in the Trust Indenture Act and this Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent permitted thereby, the Trustee, in its capacity as trustee in respect of the Securities of any series, shall not be deemed to have a conflicting interest arising from its capacity as trustee in respect of the Securities of any other series.
Section 11.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(A)             a corporation, trust company or banking association organized and doing business under the laws of the United States, any State or Territory thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least Fifty Million Dollars ($50,000,000) and subject to supervision or examination by Federal or State authority, or
(B)              if and to the extent permitted by the Commission by rule, regulation or order upon application, a corporation or other Person organized and doing business under the laws of a foreign government, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least Fifty Million Dollars ($50,000,000) or the Dollar equivalent of the applicable foreign currency and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees,
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and, in either case, qualified and eligible under this Article and the Trust Indenture Act. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 11.10 Resignation and Removal; Appointment of Successor.
(a)                No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 11.11.
(b)               The Trustee may resign at any time by giving thirty (30) days’ written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 11.11 shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(c)                The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Securities then Outstanding thirty (30) days after the delivery thereof to the Trustee and to the Company.
(d)               If at any time:
(i)                    the Trustee shall fail to comply with Section 11.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder for at least six months, or
(ii)                  the Trustee shall cease to be eligible under Section 11.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(iii)                 the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (x) the Company by a Board Resolution may remove the Trustee or (y) subject to Section 10.18, any Holder who has been a bona fide Holder for at least six (6) months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee or Trustees.
(e)                If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause (other than as contemplated in clause (y) in subsection (d) of this Section), the Company, by a Board Resolution, shall take prompt steps to appoint a successor Trustee or Trustees and shall comply with the applicable requirements of Section 11.11. If, within one (1) year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Securities then Outstanding delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 11.11, become the successor Trustee and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 11.11, any Holder who has been a bona fide Holder of a Security for at least six (6) months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
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(f)                So long as no event which is, or after notice or lapse of time, or both, would become, an Event of Default shall have occurred and be continuing, if the Company shall have delivered to the Trustee (i) a Board Resolution appointing a successor Trustee, effective as of a date specified therein, and (ii) an instrument of acceptance of such appointment, effective as of such date, by such successor Trustee in accordance with Section 11.11, the Trustee shall be deemed to have resigned as contemplated in subsection (b) of this Section, the successor Trustee shall be deemed to have been appointed pursuant to subsection (e) of this Section and such appointment shall be deemed to have been accepted as contemplated in Section 11.11, all as of such date, and all other provisions of this Section and Section 11.11 shall be applicable to such resignation, appointment and acceptance except to the extent inconsistent with this subsection (f).
(g)               The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee and the address of its corporate trust office.
Section 11.11 Acceptance of Appointment by Successor.
(a)                In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of all sums owed to it, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its Lien provided for in Section 11.7.
(b)               Upon request of any such successor Trustee, the Company shall execute any instruments which fully vest in and confirm to such successor Trustee all rights, powers and trusts referred to in subsection (a) of this Section.
(c)                No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
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Section 11.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 11.13 Preferential Collection of Claims against Company.
If the Trustee shall be or become a creditor of the Company or any other obligor upon the Securities (other than by reason of a relationship described in Section 311(b) of the Trust Indenture Act), the Trustee shall be subject to any and all applicable provisions of the Trust Indenture Act regarding the collection of claims against the Company or such other obligor. For purposes of Section 3.11(b) of the Trust Indenture Act:
(A)             the term “cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(B)              the term “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company or such obligor for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company or such obligor arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
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Section 11.14 Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal requirements of any jurisdiction in which any of the Mortgaged Property may at the time be located, the Company and the Trustee shall have power to appoint, and, upon the written request of the Trustee or of the Holders of at least 33% in principal amount of the Securities then Outstanding, the Company shall for such purpose join with the Trustee in the execution and delivery of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Trustee and, if no Event of Default shall have occurred and be continuing, by the Company either to act as co-trustee, jointly with the Trustee, of all or any part of the Mortgaged Property, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons, in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. If the Company does not join in such appointment within fifteen (15) days after the receipt by it of a request so to do, or if an Event of Default shall have occurred and be continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company be required by any co-trustee or separate trustee so appointed to more fully confirm to such co-trustee or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following conditions:
(A)             the Securities shall be authenticated and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely, by the Trustee;
(B)              the rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed the Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations (including the holding of title to the Mortgaged Property or any portion thereof in any such jurisdiction) shall be exercised and performed by such co-trustee or separate trustee;
(C)              the Trustee at any time, by an instrument in writing executed by it, with the concurrence of the Company, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section, and, if an Event of Default shall have occurred and be continuing, the Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Company. Upon the written request of the Trustee, the Company shall join with the Trustee in the execution and delivery of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section;
(D)             neither the Trustee nor any co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(E)              any Act of Holders delivered to the Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee.
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Section 11.15 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to the Securities of one or more series, or any Tranche thereof, which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series or Tranche issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation, trust company or banking association organized and doing business under the laws of the United States, any State or Territory thereof or the District of Columbia or the Commonwealth of Puerto Rico, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than Fifty Million Dollars ($50,000,000) and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
The provisions of Sections 3.8, 11.4 and 11.5 shall be applicable to each Authenticating Agent.
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If an appointment with respect to the Securities of one or more series, or any Tranche thereof, shall be made pursuant to this Section, the Securities of such series or Tranche may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Wilmington Trust, National Association, as Trustee
By______________________
as Authenticating Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.6 and need not be accompanied by an Opinion of Counsel), shall appoint, in accordance with this Section and in accordance with such procedures as shall be reasonably acceptable to the Trustee, an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities.
Section 11.16 Limitation on Duty of Trustee in Respect of Mortgaged Property; Indemnification.
Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Mortgaged Property in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto, and the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Mortgaged Property or for insuring the Mortgaged Property or for the payment of taxes, charges, assessments or Liens upon the Mortgaged Property or otherwise as to the maintenance of the Mortgaged Property. The Trustee shall be deemed to have exercised reasonable care in the custody of the Mortgaged Property in its possession if the Mortgaged Property is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Mortgaged Property, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care.
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Section 11.17 No Liability for Clean-up of Hazardous Materials.
In the event that the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Trustee’s sole discretion may cause the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“ CERCLA ”), 42 U.S.C. §9601, et seq., or otherwise cause the Trustee to incur liability under CERCLA or any other federal, state or local environmental law, the Trustee reserves the right, instead of taking such action, to either resign as the Trustee or arrange for the transfer of the title or control of the asset to a court appointed receiver. The Trustee shall not be liable to the Company or any other Person for any environmental claims or contribution actions under any federal, state or local environmental law, rule or regulation by reason of the Trustee’s actions and conduct exercised with reasonable care as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time after the occurrence of an Event of Default that is continuing, it is necessary or advisable for the Mortgaged Property to be possessed, owned, operated or managed by any Person (including the Trustee) other than the Company, a majority in aggregate principal amount of Holders shall direct the Trustee to appoint an appropriately qualified Person (excluding the Trustee) whom they shall designate to possess, own, operate or manage, as the case may be, the Mortgaged Property.
Article 12
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
Section 12.1 Lists of Holders.
Semiannually, not later than June 30 and December 31 in each year, commencing December 31, 2018, and at such other times as the Trustee may reasonably request in writing, the Company shall furnish or cause to be furnished to the Trustee information as to the names and addresses of the Holders as of a date no more than fifteen (15) days prior to the date such information is so furnished, and the Trustee shall preserve such information and similar information received by it in any other capacity and afford to the Holders access to information so preserved by it, all to such extent, if any, and in such manner as shall be required by the Trust Indenture Act;  provided ,  however , that no such list need be furnished so long as the Trustee shall be the Security Registrar.
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Section 12.2 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 12.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 12.1 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act.
Every Holder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 12.3 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than twelve (12) months shall be transmitted no later than July 1 in each calendar year, commencing with the first July 1 after the first issuance of Securities under this Indenture.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, if any, with the Commission, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act, and with the Company. The Company will promptly notify the Trustee in writing when any Securities are listed on any stock exchange and of any delisting thereof.
Section 12.4 Reports by Company.
During such periods as this Indenture is qualified under the Trust Indenture Act, the Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act. Delivery of such information, documents and other reports to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder.
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Article 13
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
Section 13.1 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation, or convey or otherwise transfer, or lease, subject to the Lien of this Indenture, all of the Mortgaged Property as or substantially as an entirety to any Person, unless:
(a)                the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or other transfer, or which leases, the Mortgaged Property as or substantially as an entirety shall be a corporation organized and existing under the laws of the United States, any State or the District of Columbia (such corporation being hereinafter sometimes called the  “Successor Corporation” ) shall execute and deliver to the Trustee an indenture supplemental hereto, in form recordable and reasonably satisfactory to the Trustee, which:
(i)                    in the case of a consolidation, merger, conveyance or other transfer, or in the case of a lease if the term thereof extends beyond the last Stated Maturity of the Securities then Outstanding, contains an assumption by the Successor Corporation of the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities then Outstanding and the performance and observance of every covenant and condition of this Indenture to be performed or observed by the Company; and
(ii)                  in the case of a consolidation, merger, conveyance or other transfer, contains a grant, conveyance, transfer and mortgage by the Successor Corporation, of the same tenor of the Granting Clauses herein,
(A)             confirming the Lien of this Indenture on the Mortgaged Property (as constituted immediately prior to the time such transaction became effective) and subjecting to the Lien of this Indenture all property, real, personal and mixed, thereafter acquired by the Successor Corporation which shall constitute an improvement, extension or addition to the Mortgaged Property (as so constituted) or a renewal, replacement or substitution of or for any part thereof, and, at the election of the Successor Corporation,
(B)              subjecting to the Lien of this Indenture such property, real, personal or mixed, in addition to the property described in subclause (A) above, then owned or thereafter acquired by the Successor Corporation as the Successor Corporation shall, in its sole discretion, specify or describe therein, and the Lien confirmed or created by such grant, conveyance, transfer and mortgage shall have force, effect and standing similar to those which the Lien of this Indenture would have had if the Company had not been a party to such consolidation, merger, conveyance or other transfer and had itself, after the time such transaction became effective, purchased, constructed or otherwise acquired the property subject to such grant, conveyance, transfer and mortgage;
(b)               in the case of a lease, such lease shall be made expressly subject to termination by the Company or by the Trustee at any time during the continuance of an Event of Default, and also by the purchaser of the property so leased at any sale thereof hereunder, whether such sale be made under the power of sale hereby conferred or pursuant to judicial proceedings; and
(c)                the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each of which shall state that such consolidation, merger, conveyance or other transfer or lease, and such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
As used in this Article and in Section 8.9(d), the terms “improvement,” “extension” and “addition”  shall be limited to (a) with respect to real property, if any, subject to the Lien of this Indenture, any item of personal property which has been so affixed or attached to such real property as to be regarded a part of such real property under applicable law and (b) with respect to personal property subject to the Lien of this Indenture, any improvement, extension or addition to such personal property which (i) is made to maintain, renew, repair or improve the function of such personal property and (ii) is physically installed in or affixed to such personal property.
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Section 13.2 Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance or other transfer, subject to the Lien of this Indenture, of all of the Mortgaged Property as or substantially as an entirety in accordance with Section 13.1, the Successor Corporation shall succeed to, and be substituted for, and may exercise every power and right of, the Company under this Indenture with the same effect as if such Successor Corporation had been named as the “Company” herein. Without limiting the generality of the foregoing:
(a)                all property of the Successor Corporation then subject to the Lien of this Indenture, of the character described in Section 1.3, shall constitute Property Additions;
(b)               the Successor Corporation may execute and deliver to the Trustee, and thereupon the Trustee shall, subject to the provisions of Article 4, authenticate and deliver, Securities upon any basis provided in Article 4; and
(c)                the Successor Corporation may, subject to the applicable provisions of this Indenture, cause Property Additions to be applied to any other Authorized Purpose.
All Securities so executed by the Successor Corporation, and authenticated and delivered by the Trustee, shall in all respects be entitled to the benefit of the Lien of this Indenture equally and ratably with all Securities executed, authenticated and delivered prior to the time such consolidation, merger, conveyance or other transfer became effective.
Section 13.3 Extent of Lien Hereof on Property of Successor Corporation.
Unless, in the case of a consolidation, merger, conveyance or other transfer contemplated by Section 13.1, the indenture supplemental hereto contemplated in clause (a)(ii) in Section 13.1, or any other indenture, contains a grant, conveyance, transfer and mortgage by the Successor Corporation as described in subclause (B) thereof, neither this Indenture nor such supplemental indenture shall become or be, or be required to become or be, a Lien upon any of the properties:
(a)                owned by the Successor Corporation or any other party to such transaction (other than the Company) immediately prior to the time of effectiveness of such transaction or
(b)               acquired by the Successor Corporation at or after the time of effectiveness of such transaction, except, in either case, properties acquired from the Company in or as a result of such transaction and improvements, extensions and additions to such properties and renewals, replacements and substitutions of or for any part or parts thereof.
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Section 13.4 Release of Company upon Conveyance or Other Transfer.
In the case of a conveyance or other transfer to any Person or Persons as contemplated in Section 13.1, upon the satisfaction of all the conditions specified in Section 13.1, the Company (such term being used in this Section without giving effect to such transaction) shall be released and discharged from all obligations and covenants under this Indenture and on and under all Securities then Outstanding (unless the Company shall have delivered to the Trustee an instrument in which it shall waive such release and discharge) and the Trustee shall acknowledge in writing that the Company has been so released and discharged.
Section 13.5 Merger into Company; Extent of Lien Hereof.
(a)                Nothing in this Indenture shall be deemed to prevent or restrict any consolidation or merger after the consummation of which the Company would be the surviving or resulting corporation or any conveyance or other transfer, or lease, subject to the Lien of this Indenture, of any part of the Mortgaged Property which does not constitute the entirety, or substantially the entirety, thereof.
(b)               Unless, in the case of a consolidation or merger described in subsection (a) of this Section, an indenture supplemental hereto shall otherwise provide, this Indenture shall not become or be, or be required to become or be, a Lien upon any of the properties acquired by the Company in or as a result of such transaction or any improvements, extensions or additions to such properties or any renewals, replacements or substitutions of or for any part or parts thereof.
Article 14
Supplemental Indentures
Section 14.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(a)                to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities, all as provided in Article 13; or
(b)               to add one or more covenants of the Company or other provisions for the benefit of all Holders or for the benefit of the Holders of, or to remain in effect only so long as there shall be Outstanding, Securities of one or more specified series, or one or more specified Tranches thereof; or to surrender any right or power herein conferred upon the Company; or
(c)                to correct or amplify the description of any property at any time subject to the Lien of this Indenture; or better to assure, convey and confirm unto the Trustee any property subject or required to be subjected to the Lien of this Indenture; or to subject to the Lien of this Indenture additional property (including property of Persons other than the Company), to specify any additional Permitted Liens with respect to such additional property and to modify Section 8.2 in order to specify therein any additional items with respect to such additional property; or
(d)               to change or eliminate any provision of this Indenture or to add any new provision to this Indenture; provided, however , that if such change, elimination or addition shall adversely affect the interests of the Holders of Securities of any series or Tranche in any material respect (as determined in good faith by the Company), such change, elimination or addition shall become effective with respect to such series or Tranche only when no Security of such series or Tranche remains Outstanding; or
(e)                to establish the form or terms of Securities of any series or Tranche as contemplated by Sections 2.1 and 3.1; or
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(f)                to provide for the authentication and delivery of bearer Securities and coupons appertaining thereto representing interest, if any, thereon and for the procedures for the registration, exchange and replacement thereof and for the giving of notice to, and the solicitation of the vote or consent of, the holders thereof, and for any and all other matters incidental thereto; or
(g)               to evidence and provide for the acceptance of appointment hereunder by a successor Trustee or by a co-trustee or separate trustee; or
(h)               to provide for the procedures required to permit the Company to utilize, at its option, a non-certificated system of registration for all, or any series or Tranche of, the Securities; or
(i)                 to change any place or places where (1) the principal of and premium, if any, and interest, if any, on all or any series of Securities, or any Tranche thereof, shall be payable, (2) all or any series of Securities, or any Tranche thereof, may be surrendered for registration of transfer, (3) all or any series of Securities, or any Tranche thereof, may be surrendered for exchange and (4) notices and demands to or upon the Company in respect of all or any series of Securities, or any Tranche thereof, and this Indenture may be served; or
(j)                 to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; or to make any other additions to, deletions from or other changes to the provisions under this Indenture, provided that such additions, deletions and/or other changes shall not adversely affect the interests of the Holders of Securities of any series or Tranche in any material respect (as determined in good faith by the Company); or
(k)               to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded; or
(l)                 to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted, and to add to this Indenture such other provisions as may be expressly permitted by the Trust Indenture Act, excluding, however the provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which this instrument was executed or any corresponding provision in any similar federal statute hereafter enacted.
Without limiting the generality of the foregoing, if the Trust Indenture Act as in effect at the date of the execution and delivery of this Indenture, as originally executed and delivered, or at any time thereafter shall be amended and
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(x)       if any such amendment shall require one or more changes to any provisions hereof or the inclusion herein of any additional provisions, or shall by operation of law be deemed to effect such changes or incorporate such provisions by reference or otherwise, this Indenture shall be deemed to have been amended so as to conform to such amendment to the Trust Indenture Act, and the Company and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to evidence such amendment hereof; or
(y)       if any such amendment shall permit one or more changes to, or the elimination of, any provisions hereof which, at the date of the execution and delivery hereof or at any time thereafter, are required by the Trust Indenture Act to be contained herein or are contained herein to reflect any provisions of the Trust Indenture Act as in effect at such date, this Indenture shall be deemed to have been amended to effect such changes or elimination, and the Company and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to amend this Indenture to effect such changes or elimination.
Section 14.2 Supplemental Indentures with Consent of Holders.
Subject to the provisions of Section 14.1, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding under this Indenture, considered as one class, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture;  provided ,  however , that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and  provided ,  further , that if the Securities of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required; and provided ,  further , that no such supplemental indenture shall:
(a)                change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon (or the amount of any installment of interest thereon) or change the method of calculating such rate or reduce any premium payable thereon, or reduce the amount of the principal of any Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 10.2, or change the coin or currency (or other property), in which any Security or premium, if any, or interest, if any, thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Maturity of any Security, without, in any such case, the consent of the Holder of such Security; or
(b)               permit the creation of any Lien (not otherwise permitted hereby) ranking prior to the Lien of this Indenture with respect to all or substantially all of the Mortgaged Property, or (except by virtue of a supplemental indenture described in clause (j) in Section 14.1) terminate the Lien of this Indenture on all or substantially all of the Mortgaged Property or deprive the Holders of the benefit of the Lien of this Indenture, without, in any such case, the consent of the Holders of all Securities then Outstanding; or
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(c)                reduce the percentage in principal amount of the Outstanding Securities of any series, or any Tranche thereof, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with any provision of this Indenture or of any default hereunder and its consequences, or reduce the requirements of Section 15.4 for quorum or voting, without, in any such case, the consent of the Holder of each Outstanding Security of such series or Tranche; or
(d)               modify any of the provisions of this Section, Section 6.9 or Section 10.17 with respect to the Securities of any series or any Tranche thereof (except to increase the percentages in principal amount referred to in this Section or such other Sections or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holders of all Securities of such series or Tranche) without, in any such case, the consent of the Holder of each Outstanding Security of such series or Tranche;  provided ,  however , that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Section 14.1(g).
A supplemental indenture which (x) changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of the Holders of, or which is to remain in effect only so long as there shall be Outstanding, Securities of one or more specified series, or one or more Tranches thereof, or (y) modifies the rights of the Holders of Securities of such series or Tranches with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
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Section 14.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 11.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise.
Section 14.4 Effect of Supplemental Indentures.
Upon the execution and delivery of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Any supplemental indenture permitted by this Article may restate this Indenture in its entirety, and, upon the execution and delivery thereof, any such restatement shall supersede this Indenture as theretofore in effect for all purposes.
Section 14.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 14.6 Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series, or any Tranche thereof, so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series or Tranche.
Section 14.7 Modification Without Supplemental Indenture.
To the extent, if any, that the terms of any particular series of Securities shall have been established in or pursuant to a Board Resolution or an Officer’s Certificate pursuant to a supplemental indenture or a Board Resolution as contemplated by Section 3.1, and not in a supplemental indenture, additions to, changes in or the elimination of any of such terms may be effected by means of a supplemental Board Resolution or a supplemental Officer’s Certificate, as the case may be, delivered to, and accepted by, the Trustee;  provided ,  however , that such supplemental Board Resolution or supplemental Officer’s Certificate shall not be accepted by the Trustee or otherwise be effective unless all conditions set forth in this Indenture which would be required to be satisfied if such additions, changes or elimination were contained in a supplemental indenture shall have been appropriately satisfied. Upon the acceptance thereof by the Trustee, any such supplemental Board Resolution or supplemental Officer’s Certificate shall be deemed to be a “supplemental indenture” for purposes of Section 14.4 and 14.6 and a “supplemental indenture,” “indenture supplemental” to this Indenture or “instrument” supplemental to this Indenture for purposes of Section 6.8.
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Article 15
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 15.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series or Tranches.
Section 15.2 Call, Notice and Place of Meetings.
(a)                The Trustee may at any time call a meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, for any purpose specified in Section 15.1, to be held at such time and (except as provided in subsection (b) of this Section) at such place in the Borough of Manhattan, the City of New York, as the Trustee shall determine, or, with the approval of the Company, at any other place. Notice of every such meeting, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.9, not less than twenty-one (21) nor more than one hundred eighty (180) days prior to the date fixed for the meeting.
(b)               The Trustee may be asked to call a meeting of the Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, by the Company or by the Holders of 33% in aggregate principal amount of all of such series and Tranches, considered as one class, for any purpose specified in Section 15.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting. If the Trustee shall have been asked by the Company to call such a meeting, the Company shall determine the time and place for such meeting and may call such meeting by giving notice thereof in the manner provided in subsection (a) of this Section, or shall direct the Trustee, in the name and at the expense of the Company, to give such notice. If the Trustee shall have been asked to call such a meeting by Holders in accordance with this subsection (b), and the Trustee shall not have given the notice of such meeting within twenty-one (21) days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Holders of Securities of such series and Tranches, in the principal amount above specified, may determine the time and the place in the Borough of Manhattan, The City of New York, or in such other place as shall be determined or approved by the Company, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
(c)                Any meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, shall be valid without notice if the Holders of all Outstanding Securities of such series or Tranches are present in person or by proxy and if representatives of the Company and the Trustee are present, or if notice is waived in writing before or after the meeting by the Holders of all Outstanding Securities of such series, or any Tranche or Tranches thereof, or by such of them as are not present at the meeting in person or by proxy, and by the Company and the Trustee.
 	105	 	

Section 15.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, a Person shall be (a) a Holder of one or more Outstanding Securities of such series or Tranches or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series or Tranches by such Holder or Holders. The only Persons who shall be entitled to attend any meeting of Holders of Securities of any series or Tranche shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 15.4 Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of the series and Tranches with respect to which a meeting shall have been called as hereinbefore provided, considered as one class, shall constitute a quorum for a meeting of Holders of Securities of such series and Tranches;  provided ,  however , that if any action is to be taken at such meeting which this Indenture expressly provides may be taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of such series and Tranches, considered as one class, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series and Tranches, considered as one class, shall constitute a quorum. In the absence of a quorum within one hour of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series and Tranches, be dissolved. In any other case the meeting may be adjourned for such period as may be determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for such period as may be determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Except as provided by Section 15.5(e), notice of the reconvening of any meeting adjourned for more than thirty (30) days shall be given as provided in Section 1.9 not less than ten (10) days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 14.2, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of the series and Tranches with respect to which such meeting shall have been called, considered as one class;  provided ,  however , that, except as so limited, any resolution with respect to any action which this Indenture expressly provides may be taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of such series and Tranches, considered as one class, may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of Securities duly held in accordance with this Section shall be binding on all the Holders of Securities of the series and Tranches with respect to which such meeting shall have been held, whether or not present or represented at the meeting.
 	106	 	

Section 15.5 Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a)                Attendance at meetings of Holders of Securities may be in person or by proxy; and, to the extent permitted by law, any such proxy shall remain in effect and be binding upon any future Holder of the Securities with respect to which it was given unless and until specifically revoked by the Holder or future Holder (except as provided in Section 1.7) of such Securities before being voted.
(b)               Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities in regard to proof of the holding of such Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations and approved by the Company, the holding of Securities shall be proved in the manner specified in Section 1.7 and the appointment of any proxy shall be proved in the manner specified in Section 1.7. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.7 or other proof.
(c)                The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 15.2(b), in which case the Company or the Holders of Securities of the series and Tranches calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of all series and Tranches represented at the meeting, considered as one class.
(d)               At any meeting each Holder or proxy shall be entitled to one vote for each Two Thousand Dollars ($2,000) principal amount of Outstanding Securities held or represented by such Holder;  provided ,  however , that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security or proxy.
(e)                Any meeting duly called pursuant to Section 15.2 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of all series and Tranches represented at the meeting, considered as one class; and the meeting may be held as so adjourned without further notice.
 	107	 	

Section 15.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities, of the series and Tranches with respect to which the meeting shall have been called, held or represented by them. The permanent chairman of the meeting shall appoint two (2) inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that such notice was given as provided in Section 15.2 and, if applicable, Section 15.4. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 15.7 Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated in this Article, any request, demand, authorization, direction, notice, consent, waiver or other action may be made, given or taken by Holders by one or more written instruments as provided in Section 1.7.
Article 16
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 16.1 Liability Solely Corporate.
No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on any Securities, or any part thereof, or for any claim based thereon or otherwise in respect thereof, or of the indebtedness represented thereby, or upon any obligation, covenant or agreement under this Indenture, or in any indenture supplemental thereto, against any past, present or future incorporator, stockholder, officer or director, as such, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or legal or equitable proceeding, penalty or otherwise; it being expressly agreed and understood that this Indenture any indenture supplemental hereto and the obligations hereby secured and all the Securities are solely corporate obligations and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or any supplemental indenture or in any of the Securities or to be implied herefrom or therefrom; and such personal liability, if any, is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution and delivery of this Indenture, as originally executed and delivered, and the issuance of the Securities.
_________________________
This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.
 	108	 	

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
 
 	ELIZABETHTOWN GAS COMPANY	 	
 	 	 	 	
 	By:  	/s/ David Robbins, Jr.	 	
 	 	      Name: David Robbins, Jr.	 	
 	 	      Title:  President	 	

ATTEST:	[SEAL]	 	

/s/ Ann T. Anthony	 	
Name: Ann T. Anthony
Title: Secretary

 	WILMINGTON TRUST,	
 	NATIONAL ASSOCIATION,	
 	as Trustee	
 	 	 	 	
 	By:  	/s/ Marie McMullen	 	
     	 	      Name:  Marie McMullen	 	
 	 	      Title:  Banking Officer	 	

ATTEST: 	[SEAL]	 	

/s/ Daniel Greene	 	
Name: Daniel Greene
Title: Relationship Manager
 
 	109	 	

STATE OF NEW JERSEY :
:       ss:
COUNTY OF ATLANTIC  :
 
Be it remembered, that on June 29, 2018 before me, a Notary Public of New Jersey, personally appeared David Robbins, Jr., who, I am satisfied, is President of Elizabethtown Gas Company, one of the corporations named in the foregoing deed or instrument, and I having first made known to him the contents thereof, he acknowledged that he had signed the same as such officer for and on behalf of such corporation, that the same was made by such corporation as its voluntary act and deed, and sealed with its corporate seal, by virtue of authority of its board of directors, and that he has received, without charge, a true copy of said foregoing deed or instrument. All of which is hereby certified.
 	/s/ Jacqueline M. Parkhurst	 	
 	Notary Public of New Jersey	 	
 	My Commission Expires:	 	
 
 	110	 	

STATE OF DELAWARE   :
:       ss:
COUNTY OF NEW CASTLE  :
 
Be it remembered, that on July __, 2018 before me, a Notary Public of the State of Delaware, personally appeared Marie McMullen, who, I am satisfied, is a Banking Officer of Wilmington Trust, National Association, the national association named in the foregoing deed or instrument, and I having first made known to her the contents thereof, she acknowledged that she had signed the same as such officer for and on behalf of such national association, that the same was made by such national association as its voluntary act and deed, and sealed with its seal, by virtue of authority of its board of directors. All of which is hereby certified.
 
 	 /s/ Lynette J. Hilgar 	 	
 	Notary Public of State of Delaware	 	
 	 	 	
 	My Commission Expires:	 	
 
 	111	 	

The within First Mortgage Indenture has been recorded and filed as follows:
 
County	Date of Recordation	Book	Page	
New Jersey:	 	 	 	
    Hunterdon	 	 	 	
    Mercer	 	 	 	
    Middlesex	 	 	 	
    Morris	 	 	 	
    Sussex	 	 	 	
    Union	 	 	 	
    Warren	 	 	 	
 
 	112	 	

Exhibit 4.2
Execution Copy
*This Instrument Grants a Security Interest by a Public Utility
 	This instrument was prepared by	
 	 	
 	     /s/ Ira G. Megdal	
 	Ira G. Megdal, Esquire	

MORTGAGE

ELIZABETHTOWN GAS COMPANY
TO
WILMINGTON TRUST, NATIONAL ASSOCIATION,
Trustee
________________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 20, 2018
________________________________________________
Providing for the Issuance of First Mortgage Bonds,
Series 2018A
 
and
Supplementing the First Mortgage Indenture
Dated as of July 2, 2018
________________________________________________
This Instrument Contains After-Acquired Property Provisions

 	

FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of December 20, 2018, between  ELIZABETHTOWN GAS COMPANY , a corporation organized and subsisting under the laws of the State of New Jersey (the “ Company ”), and  WILMINGTON TRUST, NATIONAL ASSOCIATION , a national banking association, as Trustee (the “ Trustee ”).
RECITALS
The Company has heretofore duly executed and delivered to the Trustee that certain First Mortgage Indenture dated as of July 2, 2018 (the “ Original Indenture ” and as amended and supplemented by this First Supplemental Indenture, the “ Indenture ”) providing for the issuance by the Company from time to time of its bonds, notes or other evidence of indebtedness to be issued in one or more series (in the Original Indenture and herein called the “ Securities ”) and to provide security for the payment of the principal of and premium, if any, and interest, if any, on the Securities.
The Original Indenture granted and conveyed, and this First Supplemental Indenture grants and conveys, unto the Trustee, upon the trusts and for the uses and purposes specifically set forth in the Original Indenture, certain real estate, franchises and other property therein described or which might be thereafter acquired by the Company, to secure the payment of the principal of and premium, if any, and interest, if any, on the Securities from time to time issued thereunder (including pursuant to any supplemental indentures thereto, such as this First Supplemental Indenture).
The Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this First Supplemental Indenture to the Original Indenture as permitted by Sections 2.1, 3.1 and 14.1 of the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, a series of Securities (first mortgage bonds) under the Indenture in an aggregate principal amount of $530,000,000 (the “ Series 2018A Bonds ”). The Series 2018A Bonds will be issued in five Tranches, as follows: (a) 4.02% First Mortgage Bonds, Series 2018A-1, due December 20, 2028 in the aggregate principal amount of $50,000,000 (the “ Series 2018A-1 Bonds ”); (b) 4.22% First Mortgage Bonds, Series 2018A-2, due December 20, 2033 in the aggregate principal amount of $55,000,000 (the “ Series 2018A-2 Bonds ”); (c) 4.29% First Mortgage Bonds, Series 2018A-3, due December 20, 2038 in the aggregate principal amount of $150,000,000 (the “ Series 2018A-3 Bonds ”); (d) 4.37% First Mortgage Bonds, Series 2018A-4, due December 20, 2048 in the aggregate principal amount of $200,000,000 (the “ Series 2018A-4 Bonds ”); and (e) 4.52% First Mortgage Bonds, Series 2018A-5, due December 20, 2058 in the aggregate principal amount of $75,000,000 (the “ Series 2018A-5 Bonds ” and together with the Series 2018A-1 Bonds, the Series 2018A-2 Bonds, the Series 2018A-3 Bonds and the Series 2018A-4 Bonds, constitute the Series 2018A Bonds).
All things necessary to make the Series 2018A Bonds, when executed by the Company and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor the valid, binding and legal obligations of the Company and to make this First Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.

 
Pursuant to Section 14.1 of the Indenture, the Company and the Trustee are authorized to execute and deliver this First Supplemental Indenture. The Company has requested and hereby requests that the Trustee join with the Company in the execution of this First Supplemental Indenture and the Company has provided the Trustee with a Board Resolution authorizing the execution of and approving this First Supplemental Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the terms of a series of Securities and to secure the payment thereon equally and ratably with all Securities Outstanding from time to time under the Indenture, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this First Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed as follows:
article 1.
TITLE, FORM AND TERMS OF SERIES 2018A BONDS
Section 1.1           Title of Bonds. This First Supplemental Indenture hereby creates a series of Securities designated as “Elizabethtown Gas Company First Mortgage Bonds, Series 2018A,” which shall be issued in five Tranches designated as: (a) “4.02% First Mortgage Bonds, Series 2018A-1, due December 20, 2028”; (b) “4.22% First Mortgage Bonds, Series 2018A-2, due December 20, 2033”; (c) “4.29% First Mortgage Bonds, Series 2018A-3, due December 20, 2038”; (d) “4.37% First Mortgage Bonds, Series 2018A-4, due December 20, 2048”; and (e) “4.52% First Mortgage Bonds, Series 2018A-5, due December 20, 2058.” The Series 2018A-1 Bonds, the Series 2018A-2 Bonds, the Series 2018A-3 Bonds, the Series 2018A-4 Bonds and the Series 2018A-5 Bonds are collectively referred to herein as, the “ Series 2018A Bonds .” For purposes of the Indenture, the Series 2018A Bonds shall constitute a single series of Securities and each of the Series 2018A-1 Bonds, the Series 2018A-2 Bonds, the Series 2018A-3 Bonds, the Series 2018A-4 Bonds and the Series 2018A-5 Bonds shall be a Tranche of the Series 2018A Bonds.
Section 1.2           Amount of Series 2018A Bonds. The Series 2018A Bonds shall be limited to an aggregate principal amount of $530,000,000, allocated among the Tranches of the Series 2018A Bonds as follows: Series 2018A-1 Bonds in the aggregate principal amount of $50,000,000; Series 2018A-2 Bonds in the aggregate principal amount of $55,000,000; Series 2018A-3 Bonds in the aggregate principal amount of $150,000,000; Series 2018A-4 Bonds in the aggregate principal amount of $200,000,000; and Series 2018A-5 Bonds in the aggregate principal amount of $75,000,000, except for Series 2018A Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Series 2018A Bonds of the same Tranche pursuant to Sections 3.4, 3.5, 3.6, 5.6 or 14.6 of the Indenture and except for any Series 2018A Bonds which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered thereunder.
 	2	 	

Section 1.3           Form and Terms of the Series 2018A Bonds. The form and terms of the Series 2018A Bonds pursuant to the authority granted by this First Supplemental Indenture in accordance with Sections 2.1, 3.1 and 14.1 of the Indenture are set forth herein.
The Series 2018A Bonds shall be registered bonds without coupons in the denominations of $100,000 and integral multiples of $1,000 in excess thereof, appropriately numbered. The Series 2018A Bonds shall be issued in certificated form only and each Series 2018A Bond shall be registered in the name of the Holder thereof (or in the name of such Holder’s nominee). The Series 2018A Bonds, when duly executed and issued by the Company and authenticated and delivered by the Trustee, shall be equally and ratably secured under the Indenture with all Securities Outstanding from time to time.
The Series 2018A-1 Bonds shall mature on December 20, 2028 and shall bear interest at the rate of 4.02% per annum, payable semiannually on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019. The Series 2018A-2 Bonds shall mature on December 20, 2033 and shall bear interest at the rate of 4.22% per annum, payable semiannually on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019. The Series 2018A-3 Bonds shall mature on December 20, 2038 and shall bear interest at the rate of 4.29% per annum, payable semiannually on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019. The Series 2018A-4 Bonds shall mature on December 20, 2048 and shall bear interest at the rate of 4.37% per annum, payable semiannually on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019. The Series 2018A-5 Bonds shall mature on December 20, 2058 and shall bear interest at the rate of 4.52% per annum, payable semiannually on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019.
Any payment of principal of or Make-Whole Amount (as defined in the Bond Purchase Agreement referred to below) or interest on any Series 2018A Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Series 2018A Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The Trustee, together with the Company, shall make payment of principal, any Make-Whole Amount or other premium, if any, and interest to each such Holder of outstanding Series 2018A Bonds pursuant to the Security Register and in accordance with the written reasonable payment instructions provided to the Company by each such Holder, which payment instructions as to such Holder may be modified in writing to the Company by such Holder from time to time. To the extent permitted by law, (a) the Company shall pay interest on any overdue payment of interest and (b) during the continuance of an Event of Default, the Company shall pay interest on the unpaid balance of the Series 2018A Bonds and on any overdue payment of any Make-Whole Amount, at the Default Rate set forth in the Series 2018A Bonds.
 	3	 	

The interest so payable on any Interest Payment Date shall be paid to the Persons in whose names the Bonds are registered at the close of business on the day that is fifteen days prior to such Interest Payment Date (a “ Regular Record Date ”); except that if the Company shall default in the payment of any interest due on such Interest Payment Date, such defaulted interest will cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name the Series 2018A Bond is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed as provided in the Indenture.
Except as provided hereinafter or in Article 3 of the Indenture, every Series 2018A Bond shall be dated as of the date of its authentication and delivery or, if that is an Interest Payment Date, the next day, and shall bear interest from the Interest Payment Date next preceding its date or the date of the first issuance of any Series 2018A Bonds of such or the Funding Date (as defined below), whichever is later. Except as provided in Article 3 of the Indenture, any Bond authenticated and delivered by the Trustee after the close of business on the Record Date with respect to any Interest Payment Date and prior to such Interest Payment Date shall be dated as of the date next following such Interest Payment Date and shall bear interest from such Interest Payment Date, except that if the Company shall default in the payment of any interest due on such Interest Payment Date, such Bond shall bear interest from the next preceding Interest Payment Date to which interest has been paid or, if no interest has been paid on such Bond, from the Funding Date. For purposes of this First Supplemental Indenture, the term “ Funding Date ” means the date of the first issuance of any Series 2018A Bonds of such Tranche.
Section 1.4           Grace Period. Failure to pay interest on any Series 2018A Bond within five (5) Business Days (as herein defined) of the same becoming due and payable shall constitute an Event of Default under Section 10.1(a) of the Indenture.
Section 1.5           Forms of Series 2018A Bonds. The forms of the Series 2018A-1 Bonds, the Series 2018A-2 Bonds, and the Series 2018A-3 Bonds, the Series 2018A-4 Bonds and the Series 2018A-5 Bonds shall be substantially in the forms of Exhibits A, B, C, D and E, respectively, attached hereto; provided that such Series 2018A Bonds may bear and contain such legends and modifications as may be required by law or as may be necessary to comply with requirements of any stock exchange or of any regulatory board, body or official.
article 2.
ISSUE AND AUTHENTICATION OF SERIES 2018A BONDS
Section 2.1            Upon compliance by the Company with the requirements of the Indenture, including this First Supplemental Indenture, for the issuance of additional Securities, Series 2018A Bonds up to an aggregate principal amount of $530,000,000, allocated among the Tranches of the Series 2018A Bonds as follows: Series 2018A-1 Bonds in the aggregate principal amount of $50,000,000; Series 2018A-2 Bonds in the aggregate principal amount of $55,000,000; Series 2018A-3 Bonds in the aggregate principal amount of $150,000,000; Series 2018A-4 Bonds in the aggregate principal amount of $200,000,000; and Series 2018A-5 Bonds in the aggregate principal amount of $75,000,000, may forthwith, or, at the election of the Company, in stages from time to time, be executed by the Company and delivered to the Trustee, and the Trustee shall thereupon authenticate and make available for delivery said Series 2018A Bonds in accordance with the Original Indenture (which may be either before or after the recording of this First the Series 2018A-4 Bonds and the Series 2018A-5 Bonds Supplemental Indenture), and upon such execution, delivery and authentication, the Series 2018A Bonds shall be entitled to all of the benefits of the Indenture and shall be equally and ratably secured under the Indenture, notwithstanding that the recording of this Supplemental Indenture may be completed after the execution, delivery and authentication thereof. The Series 2018A Bonds shall be executed, authenticated and delivered in accordance with the provisions of, and, except as hereinafter provided, shall in all respects be subject to all of the terms, conditions and covenants of the Indenture as supplemented, including by this First Supplemental Indenture. Such authenticated Bonds shall be delivered as directed by the order of designated officer or officers of the Company.
 	4	 	

article 3. 
REDEMPTION
Section 3.1           Redemption. Notwithstanding Article 5 of the Indenture, the Bonds shall be redeemable as set forth in the Bond Purchase Agreement. The Trustee shall not be responsible for the calculation of the Make-Whole Amount. The Company shall calculate the Make-Whole Amount, if any, with respect to any such redemption and shall promptly notify the Trustee thereof.
Section 3.2           Notice. In case the Company shall desire to exercise its right to redeem Bonds, notice of redemption shall be mailed by the Company, postage prepaid, as set forth in the Bond Purchase Agreement, to the owners of the Bonds to be redeemed, as a whole or in part, at their addresses as the same shall appear on the Security Register as of the most recent practicable date prior to such notice. Failure to duly give notice by mail, or defect in the notice, to the owner of any such Bond shall not affect the validity of the proceedings for the redemption of any other Bond.
article 4.
COVENANTS
Section 4.1           Bond Purchase Agreement. With respect to the Series 2018A Bonds issued hereunder, the Company shall comply with all of the terms, conditions and covenants set forth in the Bond Purchase Agreement, dated the date hereof, by and between the Company and the purchasers of the Series 2018A Bonds listed in Schedule A thereto (as from time to time amended in accordance with its terms, the “ Bond Purchase Agreement ”).
Section 4.2           Financial Reporting. The Company shall comply with the information delivery requirements of Section 7.1 of the Bond Purchase Agreement from the date of such Bond Purchase Agreement and then so long as any Series 2018A Bonds are Outstanding.
article 5. 
PAYING AGENT AND SECURITY REGISTRAR
Section 5.1           Paying Agent. Until otherwise determined by the Company, the Trustee shall serve as the Paying Agent for the Series 2018A Bonds and agrees to perform the duties and services of Paying Agent provided in the Indenture.
 	5	 	

Section 5.2           Security Registrar. The Company hereby confirms the appointment in the Original Indenture of the Trustee as the Security Registrar for the Series 2018A Bonds.
article 6. 
CONCERNING THE TRUSTEE
Section 6.1            The Trustee, for itself and its successors in said trusts, hereby accepts the trust hereby provided and agrees to perform the same upon the terms and conditions contained in the Indenture, including this First Supplemental Indenture.
Section 6.2            The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity, adequacy or sufficiency of this First Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
article 7. 
AMENDMENT TO INDENTURE
Section 7.1            The first two paragraphs of Section 10.2 of the Indenture are amended and restated in their entirety to read as follows:
“If an Event of Default shall have occurred under Section 10.1(d) or Section 10.1(e), the principal amount of the Securities then Outstanding and all other amounts payable thereunder shall become immediately due and payable without notice.
If an Event of Default shall have occurred under Section 10.1(a), (b), or (c) and be continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Securities then Outstanding may declare the principal amount (or, if any of the Securities are Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof as contemplated by Section 3.1) of all Securities then Outstanding to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders). Upon any Securities becoming due and payable under the first two paragraphs of this Section 10.2, automatically or by declaration, the entire principal amount (or, if any of the Securities are Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof as contemplated by Section 3.1), together with premium or other amounts payable, if any, and accrued interest, if any, thereon, shall become immediately due and payable.”
article 8.
MISCELLANEOUS
Section 8.1            Except as expressly amended and supplemented hereby, the Indenture shall continue in full force and effect in accordance with the provisions thereof and the Indenture is in all respects hereby ratified and confirmed. This First Supplemental Indenture and all of its provisions shall be deemed a part of the Indenture in the manner and to the extent herein and therein provided. The Company and the Trustee agree that, notwithstanding the date of recording of this First Supplemental Indenture, this First Supplemental Indenture shall not affect the priority or enforceability of the Original Indenture, the lien thereof and security interests granted thereby.
 	6	 	

Section 8.2            All capitalized terms used in this First Supplemental Indenture that are not defined in this First Supplemental Indenture which are defined in the Indenture shall have the same meaning as used in the Indenture, except where the context clearly indicates otherwise. The term “ Business Day ” as used in this First Supplemental Indenture shall mean any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York or Folsom, New Jersey are required or authorized to be closed.
Section 8.3            This First Supplemental Indenture and Series 2018A Bonds shall be governed by and construed in accordance with the law of the State of New Jersey.
Section 8.4            The Series 2018A Bonds are not subject to any sinking fund.
Section 8.5            This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 8.6            The Article and Section headings in this First Supplemental Indenture are for convenience only and shall not affect the construction hereof.
Section 8.7            All covenants and agreements in this First Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 8.8            In case any provision in this First Supplemental Indenture shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 	7	 	

IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.
 	ELIZABETHTOWN GAS COMPANY	 	

 	By:  	      /s/ Brian MacLean 	 	
 	 	Name: Brian MacLean 	 	
 	 	Title: President 	 	

 	 	 	 	
ATTEST: 	[SEAL] 	 	

/s/ Ann T. Anthony	 	
Name: Ann T. Anthony
Title: Treasurer and Secretary

 	WILMINGTON TRUST,	
 	NATIONAL ASSOCIATION,	
 	as Trustee	
 	 	 	 	
 	By:  	       /s/ Marie McMullen	 	
     	 	Name:  Marie McMullen	 	
 	 	Title:  Banking Officer	 	

ATTEST: 	[SEAL]	 	

/s/ Michael G. Bochanski, Jr.	 	
Name: Michael G. Bochanski, Jr.
Title: Relationship Manager
 
 	8	 	

STATE OF NEW JERSEY  :
:       ss:
COUNTY OF ATLANTIC :
 
Be it remembered, that on December 18, 2018, before me, a Notary Public of New Jersey, personally appeared Brian MacLean, who, I am satisfied, is President of Elizabethtown Gas Company, one of the corporations named in the foregoing deed or instrument, and I having first made known to him the contents thereof, he acknowledged that he had signed the same as such officer for and on behalf of such corporation, that the same was made by such corporation as its voluntary act and deed, and sealed with its corporate seal, by virtue of authority of its board of directors, and that he has received, without charge, a true copy of said foregoing deed or instrument. All of which is hereby certified.
 
 	      /s/ Adrienne J. Esposito	 	
 	Notary Public of New Jersey	 	
 	My Commission Expires:	 	

 	9	 	

STATE OF DELAWARE  :
:       ss:
COUNTY OF NEW CASTLE  :
 
Be it remembered, that on December 18, 2018 before me, a Notary Public of the State of Delaware, personally appeared Marie McMullen, who, I am satisfied, is a Banking Officer of Wilmington Trust, National Association, one of the corporations named in the foregoing deed or instrument, and I having first made known to her the contents thereof, she acknowledged that she had signed the same as such officer for and on behalf of such corporation, that the same was made by such corporation as its voluntary act and deed, and sealed with its corporate seal, by virtue of authority of its board of directors. All of which is hereby certified.
 
 	/s/ Michael G. Bochanski, Jr.	 	
 	Notary Public of Delaware	 	
 	My Commission Expires:	 	

 	10	 	

The within First Supplemental Indenture has been recorded and filed as follows:
 
County	Date of Recordation	Book	Page	
New Jersey:	 	 	 	
    Hunterdon	 	 	 	
    Mercer	 	 	 	
    Middlesex	 	 	 	
    Morris	 	 	 	
    Sussex	 	 	 	
    Union	 	 	 	
    Warren	 	 	 	
 
 	11	 	

EXHIBIT A
FORM OF SERIES 2018A-1 BOND
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
ELIZABETHTOWN GAS COMPANY
FIRST MORTGAGE BOND, SERIES 2018A-1
 
NO.: 2018A-1-[__]	PPN: 286857 A@6	
 	 	
ORIGINAL ISSUE DATE: December [20,] 2018	PRINCIPAL AMOUNT: $[__________]	
 	 	
INTEREST RATE: 4.02%	STATED MATURITY DATE: December 20, 2028	
 	 	
REDEMPTION TERMS, IF ANY: As described below.	OTHER TERMS: As described below.	
 
ELIZABETHTOWN GAS COMPANY, a New Jersey corporation (the “Company,” which term shall include any Successor Corporation as defined in the Indenture hereinafter referred to), for value received hereby promises to pay to [________________] or its registered assigns, the principal sum of [ ____________] DOLLARS  on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date set forth above, or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on June 20 and December 20 in each year (each, an “ Interest Payment Date ”), commencing June 20, 2019, at the per annum Interest Rate set forth above, until the principal hereof is paid. No interest shall accrue on or after the Maturity Date so long as the principal amount of this Bond is paid in full on the Maturity Date, and if this Bond shall be duly called for redemption, interest shall accrue until, but not including, the redemption date. The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Bond is registered at the close of business on the “ Regular Record Date ” for such interest, which shall be the June 5 or December 5, as the case may be, next preceding such Interest Payment Date; provided that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable. To the extent permitted by law, (a) the Company shall pay interest on any overdue payment of interest and (b) during the continuance of an Event of Default, the Company shall pay interest on the unpaid balance of this Bond and on any overdue payment of any Make-Whole Amount, at the Default Rate. “ Default Rate ” means that rate of interest that is the greater of (i) 2% per annum above the rate of interest of the Series 2018A-1 Bonds or (ii) 2% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate;  provided ,  however , in no event will the rate of interest on a Series 2018A-1 Bond, including any Default Rate, be greater than 10% per annum.
 	A-1	 	

Capitalized terms used but not defined in this Bond that are defined in the Indenture shall have such meanings as provided in the Indenture (as modified by the First Supplemental Indenture referred to below), except that the term “Make-Whole Amount” shall have the meaning assigned to such term in the Bond Purchase Agreement.
Except as otherwise provided in the Indenture, all payments of principal hereof, Make-Whole Amount, if any, and interest hereon shall be paid at the corporate trust office of the Trustee (as hereinafter defined), or at such other place as the Company shall have designated by written notice to the Holder of this Bond as provided in the Bond Purchase Agreement, in such coin or currency of the United States of America as at the time of payment shall constitute legal tender for the payment of public and private debts.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Bond is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed as provided in the Indenture.
This Bond is one of a duly authorized issue of Securities (first mortgage bonds) of the Company, designated as “Elizabethtown Gas Company First Mortgage Bonds, Series 2018A” (sometimes referred to herein as the “ Series 2018A Bonds ”), issued or to be issued under and equally and ratably secured by that certain First Mortgage Indenture dated as of July 2, 2018 (the “ Original Indenture ”) between the Company and Wilmington Trust, National Association, as trustee (the “ Trustee ,” which term shall include any successor trustee as provided in the Indenture), as such Original Indenture may be amended and supplemented by indentures supplemental thereto from time to time, including that First Supplemental Indenture dated as of December [20,] 2018 (the “ First Supplemental Indenture ”), duly executed by the Company to the Trustee, to which Original Indenture and all indentures supplemental thereto (herein sometimes collectively called the “ Indenture ”) reference is hereby made for a description of the property mortgaged and pledged and the respective rights of the Company, the Trustee and the Holders of Securities in respect thereof, and for a specification of the principal amount of Securities from time to time issuable thereunder and the conditions upon which Securities may be issued.
The Series 2018A Bonds are issued pursuant to the First Supplemental Indenture in five Tranches. This Bond is a “ Series 2018A-1 Bond .” The Series 2018A-1 Bonds are of similar tenor hereto and are limited to the aggregate authorized principal amount of $50,000,000 (except for Series 2018A-1 Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Series 2018A-1 Bonds pursuant to Sections 3.4, 3.5, 3.6, 5.6 or 14.6 of the Indenture and except for any Series 2018A-1 Bonds which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered hereunder). Except as otherwise provided, this Bond is subject to all of the terms, conditions and covenants of the Indenture as supplemented, including by the First Supplemental Indenture.
 	A-2	 	

This Bond is also issued in accordance with the terms of the Bond Purchase Agreement, dated as of December [20,] 2018 (as from time to time amended in accordance with its terms, the “ Bond Purchase Agreement ”), between the Company and the purchasers of the Series 2018A Bonds listed in Schedule A thereto and is entitled to the benefits thereof.
The Company or the Paying Agent, as the case may be, will make required prepayments in respect of this Bond on the dates and in the amounts specified in the Bond Purchase Agreement. Notwithstanding Article 5 of the Indenture, this Bond is also subject to optional prepayment, in whole or in part, at the times and on the terms specified in the Bond Purchase Agreement, but not otherwise. In the event of a prepayment of this Bond in part only, a new Series 2018A-1 Bond or Bonds for the unpaid portion hereof may be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this Bond may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Indenture and this Bond. In the event that the principal of this Bond shall have been declared or otherwise become due and payable as described in the preceding sentence then, in addition to the entire principal amount, any accrued interest and the Make-Whole Amount, if any, shall also become due and payable.
If an “Event of Default” under the Bond Purchase Agreement shall occur and be continuing, the principal of all the Bonds at any such time outstanding under the Bond Purchase Agreement may be declared or may become due and payable, upon the conditions and in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Bond Purchase Agreement.
The Indenture and the Bond Purchase Agreement provide that such declarations referred to in the two preceding paragraphs may in certain events be waived by the Holders of a majority in principal amount of the relevant Securities Outstanding.
Interest payments for this Bond shall be computed and paid on the basis of a 360-day year of twelve 30-day months. Anything in the Bond Purchase Agreement or the Indenture to the contrary notwithstanding (but without limiting the requirement in Section 8.4 of the Bond Purchase Agreement that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on this Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of this Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
As more fully described in the Indenture, the Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Series 2018A-1 Bonds (except for certain obligations as specifically set forth in the Indenture) if the Company deposits with the Trustee or any Paying Agent (other than the Company) money or Eligible Obligations or a combination thereof, in an amount sufficient, determined as provided in the Indenture, to pay at maturity or the applicable redemption date all then Outstanding Series 2018A-1 Bonds.
 	A-3	 	

The Series 2018A-1 Bonds are issuable only in registered form, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series 2018A-1 Bonds are exchangeable for a like aggregate principal amount of Series 2018A-1 Bonds of like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Bond is registrable in the Securities Register. Upon surrender of this Bond for registration of transfer at the corporate trust office of the Trustee or such other office or agency as may be designated by the Company, endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar, duly executed by the Holder hereof or the attorney in fact of such Holder duly authorized in writing, one or more new Bonds of like tenor and of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Bond is registered as the owner thereof for all purposes, whether or not this Bond is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
As more fully provided in the Indenture, certain of the provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added, without the consent of the Holders, while other provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added only with the consent of Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding, considered as one class;  provided ,  however , that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and  provided ,  further , that if the Securities of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required. Notwithstanding the foregoing, as provided in the Indenture, certain provisions of this Bond may not be changed without the consent of the Holder of this Bond.
 	A-4	 	

No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on this Bond, or any part thereof, or for any claim based thereon or otherwise in respect hereof, or of the indebtedness represented hereby, or upon any obligation, covenant or agreement under the Indenture, any indenture supplemental thereto or this Bond, against any past, present or future incorporator, stockholder, officer or director, as such, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or legal or equitable proceeding, penalty or otherwise; it being expressly agreed and understood that this Bond and the obligations evidenced hereby are solely corporate obligations and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the indebtedness evidenced hereby or under or by reason of any of the obligations, covenants or agreements contained in the Indenture, any supplemental indenture or in this Bond or to be implied therefrom or herefrom; and such personal liability, if any, is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution and delivery of the Indenture, as originally executed and delivered, and the issuance of this Bond.
This Bond shall be governed by and construed in accordance with the law of the State of New Jersey.
Unless the certificate of authentication hereon has been executed by the Trustee directly or through an Authenticating Agent by manual signature of an authorized officer, this Bond shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 	A-5	 	

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
ELIZABETHTOWN GAS COMPANY

 
 	By:	___________________________________ 	
 	Name:	 	
 	Title:	 	

Attest: __________________________
 	Name:	 	
 	Title:	 	
 
 	A-6	 	

 
Trustee’s Certificate of Authentication
This is one of the Series 2018A-1 Bonds designated, described or provided for in the within-mentioned Indenture.
 
  WILMINGTON TRUST, NATIONAL ASSOCIATION,
     as Trustee

 	By: 	___________________________________ 	
 	 	Authorized Officer	

Date of Authentication:
 
 	A-7	 	

EXHIBIT B
FORM OF SERIES 2018A-2 BOND
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
ELIZABETHTOWN GAS COMPANY
FIRST MORTGAGE BOND, SERIES 2018A-2
 
NO.: 2018A-2-[__]	PPN: 286857 A#4	
 	 	
ORIGINAL ISSUE DATE: December [20,] 2018	PRINCIPAL AMOUNT: $[__________]	
 	 	
INTEREST RATE: 4.22%	STATED MATURITY DATE: December 20, 2033	
 	 	
REDEMPTION TERMS, IF ANY: As described below.	OTHER TERMS: As described below.	

ELIZABETHTOWN GAS COMPANY, a New Jersey corporation (the “Company,” which term shall include any Successor Corporation as defined in the Indenture hereinafter referred to), for value received hereby promises to pay to [________________] or its registered assigns, the principal sum of [ ____________] DOLLARS  on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date set forth above, or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on June 20 and December 20 in each year (each, an “ Interest Payment Date ”), commencing June 20, 2019, at the per annum Interest Rate set forth above, until the principal hereof is paid. No interest shall accrue on or after the Maturity Date so long as the principal amount of this Bond is paid in full on the Maturity Date, and if this Bond shall be duly called for redemption, interest shall accrue until, but not including, the redemption date. The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Bond is registered at the close of business on the “ Regular Record Date ” for such interest, which shall be the June 5 or December 5, as the case may be, next preceding such Interest Payment Date; provided that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable. To the extent permitted by law, (a) the Company shall pay interest on any overdue payment of interest and (b) during the continuance of an Event of Default, the Company shall pay interest on the unpaid balance of this Bond and on any overdue payment of any Make-Whole Amount, at the Default Rate. “ Default Rate ” means that rate of interest that is the greater of (i) 2% per annum above the rate of interest of the Series 2018A-2 Bonds or (ii) 2% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate;  provided ,  however , in no event will the rate of interest on a Series 2018A-2 Bond, including any Default Rate, be greater than 10% per annum.
 	B-1	 	

Capitalized terms used but not defined in this Bond that are defined in the Indenture shall have such meanings as provided in the Indenture (as modified by the First Supplemental Indenture referred to below), except that the term “Make-Whole Amount” shall have the meaning assigned to such term in the Bond Purchase Agreement.
Except as otherwise provided in the Indenture, all payments of principal hereof, Make-Whole Amount, if any, and interest hereon shall be paid at the corporate trust office of the Trustee (as hereinafter defined), or at such other place as the Company shall have designated by written notice to the Holder of this Bond as provided in the Bond Purchase Agreement, in such coin or currency of the United States of America as at the time of payment shall constitute legal tender for the payment of public and private debts.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Bond is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed as provided in the Indenture.
This Bond is one of a duly authorized issue of Securities (first mortgage bonds) of the Company, designated as “Elizabethtown Gas Company First Mortgage Bonds, Series 2018A” (sometimes referred to herein as the “ Series 2018A Bonds ”), issued or to be issued under and equally and ratably secured by that certain First Mortgage Indenture dated as of July 2, 2018 (the “ Original Indenture ”) between the Company and Wilmington Trust, National Association, as trustee (the “ Trustee ,” which term shall include any successor trustee as provided in the Indenture), as such Original Indenture may be amended and supplemented by indentures supplemental thereto from time to time, including that First Supplemental Indenture dated as of December [20,] 2018 (the “ First Supplemental Indenture ”), duly executed by the Company to the Trustee, to which Original Indenture and all indentures supplemental thereto (herein sometimes collectively called the “ Indenture ”) reference is hereby made for a description of the property mortgaged and pledged and the respective rights of the Company, the Trustee and the Holders of Securities in respect thereof, and for a specification of the principal amount of Securities from time to time issuable thereunder and the conditions upon which Securities may be issued.
The Series 2018A Bonds are issued pursuant to the First Supplemental Indenture in five Tranches. This Bond is a “ Series 2018A-2 Bond .” The Series 2018A-2 Bonds are of similar tenor hereto and are limited to the aggregate authorized principal amount of $55,000,000 (except for Series 2018A-2 Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Series 2018A-2 Bonds pursuant to Sections 3.4, 3.5, 3.6, 5.6 or 14.6 of the Indenture and except for any Series 2018A-2 Bonds which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered hereunder). Except as otherwise provided, this Bond is subject to all of the terms, conditions and covenants of the Indenture as supplemented, including by the First Supplemental Indenture.
 	B-2	 	

This Bond is also issued in accordance with the terms of the Bond Purchase Agreement, dated as of December [20,] 2018 (as from time to time amended in accordance with its terms, the “ Bond Purchase Agreement ”), between the Company and the purchasers of the Series 2018A Bonds listed in Schedule A thereto and is entitled to the benefits thereof.
The Company or the Paying Agent, as the case may be, will make required prepayments in respect of this Bond on the dates and in the amounts specified in the Bond Purchase Agreement. Notwithstanding Article 5 of the Indenture, this Bond is also subject to optional prepayment, in whole or in part, at the times and on the terms specified in the Bond Purchase Agreement, but not otherwise. In the event of a prepayment of this Bond in part only, a new Series 2018A-2 Bond or Bonds for the unpaid portion hereof may be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this Bond may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Indenture and this Bond. In the event that the principal of this Bond shall have been declared or otherwise become due and payable as described in the preceding sentence then, in addition to the entire principal amount, any accrued interest and the Make-Whole Amount, if any, shall also become due and payable.
If an “Event of Default” under the Bond Purchase Agreement shall occur and be continuing, the principal of all the Bonds at any such time outstanding under the Bond Purchase Agreement may be declared or may become due and payable, upon the conditions and in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Bond Purchase Agreement.
The Indenture and the Bond Purchase Agreement provide that such declarations referred to in the two preceding paragraphs may in certain events be waived by the Holders of a majority in principal amount of the relevant Securities Outstanding.
Interest payments for this Bond shall be computed and paid on the basis of a 360-day year of twelve 30-day months. Anything in the Bond Purchase Agreement or the Indenture to the contrary notwithstanding (but without limiting the requirement in Section 8.4 of the Bond Purchase Agreement that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on this Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of this Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
As more fully described in the Indenture, the Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Series 2018A-2 Bonds (except for certain obligations as specifically set forth in the Indenture) if the Company deposits with the Trustee or any Paying Agent (other than the Company) money or Eligible Obligations or a combination thereof, in an amount sufficient, determined as provided in the Indenture, to pay at maturity or the applicable redemption date all then Outstanding Series 2018A-2 Bonds.
 	B-3	 	

The Series 2018A-2 Bonds are issuable only in registered form, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series 2018A-2 Bonds are exchangeable for a like aggregate principal amount of Series 2018A-2 Bonds of like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Bond is registrable in the Securities Register. Upon surrender of this Bond for registration of transfer at the corporate trust office of the Trustee or such other office or agency as may be designated by the Company, endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar, duly executed by the Holder hereof or the attorney in fact of such Holder duly authorized in writing, one or more new Bonds of like tenor and of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Bond is registered as the owner thereof for all purposes, whether or not this Bond is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
As more fully provided in the Indenture, certain of the provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added, without the consent of the Holders, while other provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added only with the consent of Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding, considered as one class;  provided ,  however , that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and  provided ,  further , that if the Securities of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required. Notwithstanding the foregoing, as provided in the Indenture, certain provisions of this Bond may not be changed without the consent of the Holder of this Bond.
 	B-4	 	

No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on this Bond, or any part thereof, or for any claim based thereon or otherwise in respect hereof, or of the indebtedness represented hereby, or upon any obligation, covenant or agreement under the Indenture, any indenture supplemental thereto or this Bond, against any past, present or future incorporator, stockholder, officer or director, as such, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or legal or equitable proceeding, penalty or otherwise; it being expressly agreed and understood that this Bond and the obligations evidenced hereby are solely corporate obligations and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the indebtedness evidenced hereby or under or by reason of any of the obligations, covenants or agreements contained in the Indenture, any supplemental indenture or in this Bond or to be implied therefrom or herefrom; and such personal liability, if any, is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution and delivery of the Indenture, as originally executed and delivered, and the issuance of this Bond.
This Bond shall be governed by and construed in accordance with the law of the State of New Jersey.
Unless the certificate of authentication hereon has been executed by the Trustee directly or through an Authenticating Agent by manual signature of an authorized officer, this Bond shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 	B-5	 	

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
ELIZABETHTOWN GAS COMPANY

 
 	By: 	___________________________________ 	
 	Name:	 	
 	Title:	 	

Attest: __________________________
 	Name:	 	
 	Title:	 	
 
 	B-6	 	

Trustee’s Certificate of Authentication
This is one of the Series 2018A-2 Bonds designated, described or provided for in the within-mentioned Indenture.
 
   WILMINGTON TRUST, NATIONAL ASSOCIATION,
      as Trustee

 	By: 	___________________________________ 	
Authorized Officer

Date of Authentication:
 
 	B-7	 	

EXHIBIT C
FORM OF SERIES 2018A-3 BOND
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
ELIZABETHTOWN GAS COMPANY
FIRST MORTGAGE BOND, SERIES 2018A-3
 
NO.: 2018A-3-[__]	PPN: 286857 B*7	
 	 	
ORIGINAL ISSUE DATE: December [20,] 2018	PRINCIPAL AMOUNT: $[__________]	
 	 	
INTEREST RATE: 4.29%	STATED MATURITY DATE: December 20, 2038	
 	 	
REDEMPTION TERMS, IF ANY: As described below.	OTHER TERMS: As described below.	
 
ELIZABETHTOWN GAS COMPANY, a New Jersey corporation (the “Company,” which term shall include any Successor Corporation as defined in the Indenture hereinafter referred to), for value received hereby promises to pay to [________________] or its registered assigns, the principal sum of [ ____________] DOLLARS  on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date set forth above, or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on June 20 and December 20 in each year (each, an “ Interest Payment Date ”), commencing June 20, 2019, at the per annum Interest Rate set forth above, until the principal hereof is paid. No interest shall accrue on or after the Maturity Date so long as the principal amount of this Bond is paid in full on the Maturity Date, and if this Bond shall be duly called for redemption, interest shall accrue until, but not including, the redemption date. The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Bond is registered at the close of business on the “ Regular Record Date ” for such interest, which shall be the June 5 or December 5, as the case may be, next preceding such Interest Payment Date; provided that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable. To the extent permitted by law, (a) the Company shall pay interest on any overdue payment of interest and (b) during the continuance of an Event of Default, the Company shall pay interest on the unpaid balance of this Bond and on any overdue payment of any Make-Whole Amount, at the Default Rate. “ Default Rate ” means that rate of interest that is the greater of (i) 2% per annum above the rate of interest of the Series 2018A-3 Bonds or (ii) 2% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate;  provided ,  however , in no event will the rate of interest on a Series 2018A-3 Bond, including any Default Rate, be greater than 10% per annum.
 	C-1	 	

Capitalized terms used but not defined in this Bond that are defined in the Indenture shall have such meanings as provided in the Indenture (as modified by the First Supplemental Indenture referred to below), except that the term “Make-Whole Amount” shall have the meaning assigned to such term in the Bond Purchase Agreement.
Except as otherwise provided in the Indenture, all payments of principal hereof, Make-Whole Amount, if any, and interest hereon shall be paid at the corporate trust office of the Trustee (as hereinafter defined), or at such other place as the Company shall have designated by written notice to the Holder of this Bond as provided in the Bond Purchase Agreement, in such coin or currency of the United States of America as at the time of payment shall constitute legal tender for the payment of public and private debts.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Bond is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed as provided in the Indenture.
This Bond is one of a duly authorized issue of Securities (first mortgage bonds) of the Company, designated as “Elizabethtown Gas Company First Mortgage Bonds, Series 2018A” (sometimes referred to herein as the “ Series 2018A Bonds ”), issued or to be issued under and equally and ratably secured by that certain First Mortgage Indenture dated as of July 2, 2018 (the “ Original Indenture ”) between the Company and Wilmington Trust, National Association, as trustee (the “ Trustee ,” which term shall include any successor trustee as provided in the Indenture), as such Original Indenture may be amended and supplemented by indentures supplemental thereto from time to time, including that First Supplemental Indenture dated as of December [20,] 2018 (the “ First Supplemental Indenture ”), duly executed by the Company to the Trustee, to which Original Indenture and all indentures supplemental thereto (herein sometimes collectively called the “ Indenture ”) reference is hereby made for a description of the property mortgaged and pledged and the respective rights of the Company, the Trustee and the Holders of Securities in respect thereof, and for a specification of the principal amount of Securities from time to time issuable thereunder and the conditions upon which Securities may be issued.
The Series 2018A Bonds are issued pursuant to the First Supplemental Indenture in five Tranches. This Bond is a “ Series 2018A-3 Bond .” The Series 2018A-3 Bonds are of similar tenor hereto and are limited to the aggregate authorized principal amount of $150,000,000 (except for Series 2018A-3 Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Series 2018A-3 Bonds pursuant to Sections 3.4, 3.5, 3.6, 5.6 or 14.6 of the Indenture and except for any Series 2018A-3 Bonds which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered hereunder). Except as otherwise provided, this Bond is subject to all of the terms, conditions and covenants of the Indenture as supplemented, including by the First Supplemental Indenture.
 	C-2	 	

This Bond is also issued in accordance with the terms of the Bond Purchase Agreement, dated as of December [20,] 2018 (as from time to time amended in accordance with its terms, the “ Bond Purchase Agreement ”), between the Company and the purchasers of the Series 2018A Bonds listed in Schedule A thereto and is entitled to the benefits thereof.
The Company or the Paying Agent, as the case may be, will make required prepayments in respect of this Bond on the dates and in the amounts specified in the Bond Purchase Agreement. Notwithstanding Article 5 of the Indenture, this Bond is also subject to optional prepayment, in whole or in part, at the times and on the terms specified in the Bond Purchase Agreement, but not otherwise. In the event of a prepayment of this Bond in part only, a new Series 2018A-3 Bond or Bonds for the unpaid portion hereof may be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this Bond may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Indenture and this Bond. In the event that the principal of this Bond shall have been declared or otherwise become due and payable as described in the preceding sentence then, in addition to the entire principal amount, any accrued interest and the Make-Whole Amount, if any, shall also become due and payable.
If an “Event of Default” under the Bond Purchase Agreement shall occur and be continuing, the principal of all the Bonds at any such time outstanding under the Bond Purchase Agreement may be declared or may become due and payable, upon the conditions and in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Bond Purchase Agreement.
The Indenture and the Bond Purchase Agreement provide that such declarations referred to in the two preceding paragraphs may in certain events be waived by the Holders of a majority in principal amount of the relevant Securities Outstanding.
Interest payments for this Bond shall be computed and paid on the basis of a 360-day year of twelve 30-day months. Anything in the Bond Purchase Agreement or the Indenture to the contrary notwithstanding (but without limiting the requirement in Section 8.4 of the Bond Purchase Agreement that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on this Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of this Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
As more fully described in the Indenture, the Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Series 2018A-3 Bonds (except for certain obligations as specifically set forth in the Indenture) if the Company deposits with the Trustee or any Paying Agent (other than the Company) money or Eligible Obligations or a combination thereof, in an amount sufficient, determined as provided in the Indenture, to pay at maturity or the applicable redemption date all then Outstanding Series 2018A-3 Bonds.
 	C-3	 	

The Series 2018A-3 Bonds are issuable only in registered form, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series 2018A-3 Bonds are exchangeable for a like aggregate principal amount of Series 2018A-3 Bonds of like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Bond is registrable in the Securities Register. Upon surrender of this Bond for registration of transfer at the corporate trust office of the Trustee or such other office or agency as may be designated by the Company, endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar, duly executed by the Holder hereof or the attorney in fact of such Holder duly authorized in writing, one or more new Bonds of like tenor and of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Bond is registered as the owner thereof for all purposes, whether or not this Bond is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
As more fully provided in the Indenture, certain of the provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added, without the consent of the Holders, while other provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added only with the consent of Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding, considered as one class;  provided ,  however , that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and  provided ,  further , that if the Securities of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required. Notwithstanding the foregoing, as provided in the Indenture, certain provisions of this Bond may not be changed without the consent of the Holder of this Bond.
 	C-4	 	

No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on this Bond, or any part thereof, or for any claim based thereon or otherwise in respect hereof, or of the indebtedness represented hereby, or upon any obligation, covenant or agreement under the Indenture, any indenture supplemental thereto or this Bond, against any past, present or future incorporator, stockholder, officer or director, as such, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or legal or equitable proceeding, penalty or otherwise; it being expressly agreed and understood that this Bond and the obligations evidenced hereby are solely corporate obligations and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the indebtedness evidenced hereby or under or by reason of any of the obligations, covenants or agreements contained in the Indenture, any supplemental indenture or in this Bond or to be implied therefrom or herefrom; and such personal liability, if any, is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution and delivery of the Indenture, as originally executed and delivered, and the issuance of this Bond.
This Bond shall be governed by and construed in accordance with the law of the State of New Jersey.
Unless the certificate of authentication hereon has been executed by the Trustee directly or through an Authenticating Agent by manual signature of an authorized officer, this Bond shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 	C-5	 	

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
ELIZABETHTOWN GAS COMPANY

 
 	By: 	___________________________________ 	
 	Name:	 	
 	Title:	 	

Attest: __________________________
 	Name:	 	
 	Title:	 	
 
 	C-6	 	

Trustee’s Certificate of Authentication
This is one of the Series 2018A-3 Bonds designated, described or provided for in the within-mentioned Indenture.
 
   WILMINGTON TRUST, NATIONAL ASSOCIATION,
      as Trustee

 	By: 	___________________________________ 	
Authorized Officer

Date of Authentication:
 
 	C-7	 	

EXHIBIT D
FORM OF SERIES 2018A-4 BOND
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
ELIZABETHTOWN GAS COMPANY
FIRST MORTGAGE BOND, SERIES 2018A-4
 
NO.: 2018A-4-[__]	PPN: 286857 B@5	
 	 	
ORIGINAL ISSUE DATE: December [20,] 2018	PRINCIPAL AMOUNT: $[__________]	
 	 	
INTEREST RATE: 4.37%	STATED MATURITY DATE: December 20, 2048	
 	 	
REDEMPTION TERMS, IF ANY: As described below.	OTHER TERMS: As described below.	

ELIZABETHTOWN GAS COMPANY, a New Jersey corporation (the “Company,” which term shall include any Successor Corporation as defined in the Indenture hereinafter referred to), for value received hereby promises to pay to [________________] or its registered assigns, the principal sum of [ ____________] DOLLARS  on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date set forth above, or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on June 20 and December 20 in each year (each, an “ Interest Payment Date ”), commencing June 20, 2019, at the per annum Interest Rate set forth above, until the principal hereof is paid. No interest shall accrue on or after the Maturity Date so long as the principal amount of this Bond is paid in full on the Maturity Date, and if this Bond shall be duly called for redemption, interest shall accrue until, but not including, the redemption date. The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Bond is registered at the close of business on the “ Regular Record Date ” for such interest, which shall be the June 5 or December 5, as the case may be, next preceding such Interest Payment Date; provided that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable. To the extent permitted by law, (a) the Company shall pay interest on any overdue payment of interest and (b) during the continuance of an Event of Default, the Company shall pay interest on the unpaid balance of this Bond and on any overdue payment of any Make-Whole Amount, at the Default Rate. “ Default Rate ” means that rate of interest that is the greater of (i) 2% per annum above the rate of interest of the Series 2018A-4 Bonds or (ii) 2% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate;  provided ,  however , in no event will the rate of interest on a Series 2018A-4 Bond, including any Default Rate, be greater than 10% per annum.
 	D-1	 	

Capitalized terms used but not defined in this Bond that are defined in the Indenture shall have such meanings as provided in the Indenture (as modified by the First Supplemental Indenture referred to below), except that the term “Make-Whole Amount” shall have the meaning assigned to such term in the Bond Purchase Agreement.
Except as otherwise provided in the Indenture, all payments of principal hereof, Make-Whole Amount, if any, and interest hereon shall be paid at the corporate trust office of the Trustee (as hereinafter defined), or at such other place as the Company shall have designated by written notice to the Holder of this Bond as provided in the Bond Purchase Agreement, in such coin or currency of the United States of America as at the time of payment shall constitute legal tender for the payment of public and private debts.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Bond is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed as provided in the Indenture.
This Bond is one of a duly authorized issue of Securities (first mortgage bonds) of the Company, designated as “Elizabethtown Gas Company First Mortgage Bonds, Series 2018A” (sometimes referred to herein as the “ Series 2018A Bonds ”), issued or to be issued under and equally and ratably secured by that certain First Mortgage Indenture dated as of July 2, 2018 (the “ Original Indenture ”) between the Company and Wilmington Trust, National Association, as trustee (the “ Trustee ,” which term shall include any successor trustee as provided in the Indenture), as such Original Indenture may be amended and supplemented by indentures supplemental thereto from time to time, including that First Supplemental Indenture dated as of December [20,] 2018 (the “ First Supplemental Indenture ”), duly executed by the Company to the Trustee, to which Original Indenture and all indentures supplemental thereto (herein sometimes collectively called the “ Indenture ”) reference is hereby made for a description of the property mortgaged and pledged and the respective rights of the Company, the Trustee and the Holders of Securities in respect thereof, and for a specification of the principal amount of Securities from time to time issuable thereunder and the conditions upon which Securities may be issued.
The Series 2018A Bonds are issued pursuant to the First Supplemental Indenture in five Tranches. This Bond is a “ Series 2018A-4 Bond .” The Series 2018A-4 Bonds are of similar tenor hereto and are limited to the aggregate authorized principal amount of $200,000,000 (except for Series 2018A-4 Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Series 2018A-4 Bonds pursuant to Sections 3.4, 3.5, 3.6, 5.6 or 14.6 of the Indenture and except for any Series 2018A-4 Bonds which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered hereunder). Except as otherwise provided, this Bond is subject to all of the terms, conditions and covenants of the Indenture as supplemented, including by the First Supplemental Indenture.
 	D-2	 	

This Bond is also issued in accordance with the terms of the Bond Purchase Agreement, dated as of December [20,] 2018 (as from time to time amended in accordance with its terms, the “ Bond Purchase Agreement ”), between the Company and the purchasers of the Series 2018A Bonds listed in Schedule A thereto and is entitled to the benefits thereof.
The Company or the Paying Agent, as the case may be, will make required prepayments in respect of this Bond on the dates and in the amounts specified in the Bond Purchase Agreement. Notwithstanding Article 5 of the Indenture, this Bond is also subject to optional prepayment, in whole or in part, at the times and on the terms specified in the Bond Purchase Agreement, but not otherwise. In the event of a prepayment of this Bond in part only, a new Series 2018A-4 Bond or Bonds for the unpaid portion hereof may be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this Bond may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Indenture and this Bond. In the event that the principal of this Bond shall have been declared or otherwise become due and payable as described in the preceding sentence then, in addition to the entire principal amount, any accrued interest and the Make-Whole Amount, if any, shall also become due and payable.
If an “Event of Default” under the Bond Purchase Agreement shall occur and be continuing, the principal of all the Bonds at any such time outstanding under the Bond Purchase Agreement may be declared or may become due and payable, upon the conditions and in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Bond Purchase Agreement.
The Indenture and the Bond Purchase Agreement provide that such declarations referred to in the two preceding paragraphs may in certain events be waived by the Holders of a majority in principal amount of the relevant Securities Outstanding.
Interest payments for this Bond shall be computed and paid on the basis of a 360-day year of twelve 30-day months. Anything in the Bond Purchase Agreement or the Indenture to the contrary notwithstanding (but without limiting the requirement in Section 8.4 of the Bond Purchase Agreement that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on this Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of this Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
As more fully described in the Indenture, the Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Series 2018A-4 Bonds (except for certain obligations as specifically set forth in the Indenture) if the Company deposits with the Trustee or any Paying Agent (other than the Company) money or Eligible Obligations or a combination thereof, in an amount sufficient, determined as provided in the Indenture, to pay at maturity or the applicable redemption date all then Outstanding Series 2018A-4 Bonds.
 	D-3	 	

The Series 2018A-4 Bonds are issuable only in registered form, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series 2018A-4 Bonds are exchangeable for a like aggregate principal amount of Series 2018A-4 Bonds of like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Bond is registrable in the Securities Register. Upon surrender of this Bond for registration of transfer at the corporate trust office of the Trustee or such other office or agency as may be designated by the Company, endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar, duly executed by the Holder hereof or the attorney in fact of such Holder duly authorized in writing, one or more new Bonds of like tenor and of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Bond is registered as the owner thereof for all purposes, whether or not this Bond is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
As more fully provided in the Indenture, certain of the provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added, without the consent of the Holders, while other provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added only with the consent of Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding, considered as one class;  provided ,  however , that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and  provided ,  further , that if the Securities of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required. Notwithstanding the foregoing, as provided in the Indenture, certain provisions of this Bond may not be changed without the consent of the Holder of this Bond.
 	D-4	 	

No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on this Bond, or any part thereof, or for any claim based thereon or otherwise in respect hereof, or of the indebtedness represented hereby, or upon any obligation, covenant or agreement under the Indenture, any indenture supplemental thereto or this Bond, against any past, present or future incorporator, stockholder, officer or director, as such, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or legal or equitable proceeding, penalty or otherwise; it being expressly agreed and understood that this Bond and the obligations evidenced hereby are solely corporate obligations and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the indebtedness evidenced hereby or under or by reason of any of the obligations, covenants or agreements contained in the Indenture, any supplemental indenture or in this Bond or to be implied therefrom or herefrom; and such personal liability, if any, is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution and delivery of the Indenture, as originally executed and delivered, and the issuance of this Bond.
This Bond shall be governed by and construed in accordance with the law of the State of New Jersey.
Unless the certificate of authentication hereon has been executed by the Trustee directly or through an Authenticating Agent by manual signature of an authorized officer, this Bond shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 	D-5	 	

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
ELIZABETHTOWN GAS COMPANY

 
 	By: 	___________________________________ 	
 	Name:	 	
 	Title:	 	

Attest: __________________________
 	Name:	 	
 	Title:	 	
 
 	D-6	 	

Trustee’s Certificate of Authentication
This is one of the Series 2018A-4 Bonds designated, described or provided for in the within-mentioned Indenture.
 
   WILMINGTON TRUST, NATIONAL ASSOCIATION,
      as Trustee

 	By: 	___________________________________ 	
Authorized Officer

Date of Authentication:
 	D-7	 	

EXHIBIT E
FORM OF SERIES 2018A-5 BOND
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
ELIZABETHTOWN GAS COMPANY
FIRST MORTGAGE BOND, SERIES 2018A-5
 
NO.: 2018A-5-[__]	PPN: PPN 286857 B#3	
 	 	
ORIGINAL ISSUE DATE: December [20,] 2018	PRINCIPAL AMOUNT: $[__________]	
 	 	
INTEREST RATE: 4.52%	STATED MATURITY DATE: December 20, 2058	
 	 	
REDEMPTION TERMS, IF ANY: As described below.	OTHER TERMS: As described below.	

ELIZABETHTOWN GAS COMPANY, a New Jersey corporation (the “Company,” which term shall include any Successor Corporation as defined in the Indenture hereinafter referred to), for value received hereby promises to pay to [________________] or its registered assigns, the principal sum of [ ____________] DOLLARS  on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date set forth above, or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on June 20 and December 20 in each year (each, an “ Interest Payment Date ”), commencing June 20, 2019, at the per annum Interest Rate set forth above, until the principal hereof is paid. No interest shall accrue on or after the Maturity Date so long as the principal amount of this Bond is paid in full on the Maturity Date, and if this Bond shall be duly called for redemption, interest shall accrue until, but not including, the redemption date. The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Bond is registered at the close of business on the “ Regular Record Date ” for such interest, which shall be the June 5 or December 5, as the case may be, next preceding such Interest Payment Date; provided that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable. To the extent permitted by law, (a) the Company shall pay interest on any overdue payment of interest and (b) during the continuance of an Event of Default, the Company shall pay interest on the unpaid balance of this Bond and on any overdue payment of any Make-Whole Amount, at the Default Rate. “ Default Rate ” means that rate of interest that is the greater of (i) 2% per annum above the rate of interest of the Series 2018A-5 Bonds or (ii) 2% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate;  provided ,  however , in no event will the rate of interest on a Series 2018A-5 Bond, including any Default Rate, be greater than 10% per annum.
 	E-1	 	

Capitalized terms used but not defined in this Bond that are defined in the Indenture shall have such meanings as provided in the Indenture (as modified by the First Supplemental Indenture referred to below), except that the term “Make-Whole Amount” shall have the meaning assigned to such term in the Bond Purchase Agreement.
Except as otherwise provided in the Indenture, all payments of principal hereof, Make-Whole Amount, if any, and interest hereon shall be paid at the corporate trust office of the Trustee (as hereinafter defined), or at such other place as the Company shall have designated by written notice to the Holder of this Bond as provided in the Bond Purchase Agreement, in such coin or currency of the United States of America as at the time of payment shall constitute legal tender for the payment of public and private debts.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Bond is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed as provided in the Indenture.
This Bond is one of a duly authorized issue of Securities (first mortgage bonds) of the Company, designated as “Elizabethtown Gas Company First Mortgage Bonds, Series 2018A” (sometimes referred to herein as the “ Series 2018A Bonds ”), issued or to be issued under and equally and ratably secured by that certain First Mortgage Indenture dated as of July 2, 2018 (the “ Original Indenture ”) between the Company and Wilmington Trust, National Association, as trustee (the “ Trustee ,” which term shall include any successor trustee as provided in the Indenture), as such Original Indenture may be amended and supplemented by indentures supplemental thereto from time to time, including that First Supplemental Indenture dated as of December [20,] 2018 (the “ First Supplemental Indenture ”), duly executed by the Company to the Trustee, to which Original Indenture and all indentures supplemental thereto (herein sometimes collectively called the “ Indenture ”) reference is hereby made for a description of the property mortgaged and pledged and the respective rights of the Company, the Trustee and the Holders of Securities in respect thereof, and for a specification of the principal amount of Securities from time to time issuable thereunder and the conditions upon which Securities may be issued.
The Series 2018A Bonds are issued pursuant to the First Supplemental Indenture in five Tranches. This Bond is a “ Series 2018A-5 Bond .” The Series 2018A-5 Bonds are of similar tenor hereto and are limited to the aggregate authorized principal amount of $75,000,000 (except for Series 2018A-5 Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Series 2018A-5 Bonds pursuant to Sections 3.4, 3.5, 3.6, 5.6 or 14.6 of the Indenture and except for any Series 2018A-5 Bonds which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered hereunder). Except as otherwise provided, this Bond is subject to all of the terms, conditions and covenants of the Indenture as supplemented, including by the First Supplemental Indenture.
 	E-2	 	

This Bond is also issued in accordance with the terms of the Bond Purchase Agreement, dated as of December [20,] 2018 (as from time to time amended in accordance with its terms, the “ Bond Purchase Agreement ”), between the Company and the purchasers of the Series 2018A Bonds listed in Schedule A thereto and is entitled to the benefits thereof.
The Company or the Paying Agent, as the case may be, will make required prepayments in respect of this Bond on the dates and in the amounts specified in the Bond Purchase Agreement. Notwithstanding Article 5 of the Indenture, this Bond is also subject to optional prepayment, in whole or in part, at the times and on the terms specified in the Bond Purchase Agreement, but not otherwise. In the event of a prepayment of this Bond in part only, a new Series 2018A-5 Bond or Bonds for the unpaid portion hereof may be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this Bond may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Indenture and this Bond. In the event that the principal of this Bond shall have been declared or otherwise become due and payable as described in the preceding sentence then, in addition to the entire principal amount, any accrued interest and the Make-Whole Amount, if any, shall also become due and payable.
If an “Event of Default” under the Bond Purchase Agreement shall occur and be continuing, the principal of all the Bonds at any such time outstanding under the Bond Purchase Agreement may be declared or may become due and payable, upon the conditions and in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Bond Purchase Agreement.
The Indenture and the Bond Purchase Agreement provide that such declarations referred to in the two preceding paragraphs may in certain events be waived by the Holders of a majority in principal amount of the relevant Securities Outstanding.
Interest payments for this Bond shall be computed and paid on the basis of a 360-day year of twelve 30-day months. Anything in the Bond Purchase Agreement or the Indenture to the contrary notwithstanding (but without limiting the requirement in Section 8.4 of the Bond Purchase Agreement that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on this Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of this Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
As more fully described in the Indenture, the Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Series 2018A-5 Bonds (except for certain obligations as specifically set forth in the Indenture) if the Company deposits with the Trustee or any Paying Agent (other than the Company) money or Eligible Obligations or a combination thereof, in an amount sufficient, determined as provided in the Indenture, to pay at maturity or the applicable redemption date all then Outstanding Series 2018A-5 Bonds.
 	E-3	 	

The Series 2018A-5 Bonds are issuable only in registered form, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series 2018A-5 Bonds are exchangeable for a like aggregate principal amount of Series 2018A-5 Bonds of like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Bond is registrable in the Securities Register. Upon surrender of this Bond for registration of transfer at the corporate trust office of the Trustee or such other office or agency as may be designated by the Company, endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar, duly executed by the Holder hereof or the attorney in fact of such Holder duly authorized in writing, one or more new Bonds of like tenor and of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Bond is registered as the owner thereof for all purposes, whether or not this Bond is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
As more fully provided in the Indenture, certain of the provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added, without the consent of the Holders, while other provisions of the Indenture or Securities issued pursuant thereto may be altered, amended or eliminated, or additional provisions added only with the consent of Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding, considered as one class;  provided ,  however , that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and  provided ,  further , that if the Securities of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required. Notwithstanding the foregoing, as provided in the Indenture, certain provisions of this Bond may not be changed without the consent of the Holder of this Bond.
 	E-4	 	

No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on this Bond, or any part thereof, or for any claim based thereon or otherwise in respect hereof, or of the indebtedness represented hereby, or upon any obligation, covenant or agreement under the Indenture, any indenture supplemental thereto or this Bond, against any past, present or future incorporator, stockholder, officer or director, as such, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or legal or equitable proceeding, penalty or otherwise; it being expressly agreed and understood that this Bond and the obligations evidenced hereby are solely corporate obligations and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the indebtedness evidenced hereby or under or by reason of any of the obligations, covenants or agreements contained in the Indenture, any supplemental indenture or in this Bond or to be implied therefrom or herefrom; and such personal liability, if any, is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution and delivery of the Indenture, as originally executed and delivered, and the issuance of this Bond.
This Bond shall be governed by and construed in accordance with the law of the State of New Jersey.
Unless the certificate of authentication hereon has been executed by the Trustee directly or through an Authenticating Agent by manual signature of an authorized officer, this Bond shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 	E-5	 	

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
ELIZABETHTOWN GAS COMPANY

 
 	By: 	___________________________________ 	
 	Name:	 	
 	Title:	 	

Attest: __________________________
 	Name:	 	
 	Title:	 	
 
 	E-6	 	

Trustee’s Certificate of Authentication
This is one of the Series 2018A-5 Bonds designated, described or provided for in the within-mentioned Indenture.
 
   WILMINGTON TRUST, NATIONAL ASSOCIATION,
       as Trustee

 	By: 	___________________________________ 	
Authorized Officer

Date of Authentication:
 	E-7	 	

EXHIBIT 10.1
 
EXECUTION VERSION

ELIZABETHTOWN GAS COMPANY
 
$50,000,000 4.02% First Mortgage Bonds, Series 2018A-1, due December 20, 2028
$55,000,000 4.22% First Mortgage Bonds, Series 2018A-2, due December 20, 2033
$150,000,000 4.29% First Mortgage Bonds, Series 2018A-3, due December 20, 2038
$200,000,000 4.37% First Mortgage Bonds, Series 2018A-4, due December 20, 2048
$75,000,000 4.52% First Mortgage Bonds, Series 2018A-5, due December 20, 2058

 
BOND PURCHASE AGREEMENT
 
Dated as of December 20, 2018

 	

 	

 	TABLE OF CONTENTS	 	
 	 	 	
SECTION	HEADING	PAGE	
 	 	 	
SECTION 1.	AUTHORIZATION OF NOTES	1	
 	 	 	
Section 1.1.	Authorization of Notes	1	
 	 	 	
SECTION 2.	SALE AND PURCHASE OF NOTES	2	
 	 	 	
SECTION 3.	CLOSING	2	
 	 	 	
SECTION 4.	CONDITIONS TO THE CLOSING	3	
 	 	 	
Section 4.1.	Representations and Warranties of the Company	3	
Section 4.2.	Performance; No Default	3	
Section 4.3.	Compliance Certificates	3	
Section 4.4.	Opinions of Counsel	4	
Section 4.5.	Purchase Permitted by Applicable Law, Etc	4	
Section 4.6.	Sale of Notes	4	
Section 4.7.	Payment of Special Counsel Fees	4	
Section 4.8.	Private Placement Number	4	
Section 4.9.	Changes in Corporate Structure	4	
Section 4.10.	Funding Instructions	5	
Section 4.11.	UCC Financing Statements and the Supplement	5	
Section 4.12.	Title Policy	5	
Section 4.13.	Proceedings and Documents	5	
 	 	 	
SECTION 5.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	6	
 	 	 	
Section 5.1.	Organization; Power and Authority	6	
Section 5.2.	Authorization, Etc	6	
Section 5.3.	Disclosure	6	
Section 5.4	Subsidiaries	6	
Section 5.5.	Financial Statements; Material Liabilities	6	
Section 5.6.	Compliance with Laws, Other Instruments, Etc	7	
Section 5.7.	Governmental Authorizations, Etc	7	
Section 5.8.	Litigation; Observance of Statutes and Orders	7	
Section 5.9.	Taxes	7	
Section 5.10.	Title to Property; Leases	8	
Section 5.11.	Licenses, Permits, Etc	8	
Section 5.12.	Compliance with ERISA	8	
Section 5.13.	Private Offering by the Company	9	
Section 5.14.	Use of Proceeds; Margin Regulations	9	
Section 5.15.  	Existing Indebtedness	10	
Section 5.16.	Foreign Assets Control Regulations, Etc	10	
Section 5.17.	Status under Certain Statutes	11	
Section 5.18.	Environmental Matters	11	

-i-	

 	

Section 5.19.	Lien of Indenture	12	
Section 5.20.	Filings under Indenture	12	
Section 5.21.	Status of Certain Material Agreements	12	
 	 	 	
SECTION 6.	REPRESENTATIONS OF THE PURCHASERS	12	
 	 	 	
Section 6.1.	Purchase for Investment	12	
Section 6.2.	Source of Funds	13	
Section 6.3.	Purchaser Status; Experience	14	
Section 6.4.	Access to Information	14	
 	 	 	
SECTION 7.	INFORMATION AS TO COMPANY	15	
 	 	 	
Section 7.1.	Financial and Business Information	15	
Section 7.2.	Officer’s Certificate	17	
Section 7.3.	Visitation	18	
 	 	 	
SECTION 8.	PAYMENT AND PREPAYMENT OF THE NOTES	18	
 	 	 	
Section 8.1.	Maturity	18	
Section 8.2.	Optional Prepayments with Make-Whole Amount	18	
Section 8.3.	Allocation of Partial Prepayments	19	
Section 8.4.	Maturity; Surrender, Etc	19	
Section 8.5.	Purchase of Notes	19	
Section 8.6.	Make-Whole Amount for the Notes	19	
Section 8.7.	Change in Control	21	
 	 	 	
SECTION 9.	AFFIRMATIVE COVENANTS	22	
 	 	 	
Section 9.1.	Compliance with Law	22	
Section 9.2.	Insurance	23	
Section 9.3.	Maintenance of Properties	23	
Section 9.4.	Payment of Taxes	23	
Section 9.5.	Corporate Existence, Etc	23	
Section 9.6.	Books and Records	23	
Section 9.7.	Compliance with Material Agreements	24	
 	 	 	
SECTION 10.	NEGATIVE COVENANTS	24	
 	 	 	
Section 10.1.	Transactions with Affiliates	24	
Section 10.2.  	Line of Business	24	
Section 10.3.	Terrorism Sanctions Regulations	24	
Section 10.4.	Non-US Investors	24	
 	 	 	
SECTION 11.	EVENTS OF DEFAULT	25	
 	 	 	
SECTION 12.	REMEDIES ON DEFAULT, ETC.	26	
 	 	 	
Section 12.1.	Acceleration	26	

-ii-	

 	

Section 12.2.	Exercise of Remedies Under Indenture	27	
Section 12.3.	Other Remedies	27	
Section 12.4.	Rescission	27	
Section 12.5.	No Waivers or Election of Remedies, Expenses, Etc	28	
 	 	 	
SECTION 13.	PAYMENTS ON NOTES	28	
 	 	 	
Section 13.1.	Home Office Payment	28	
 	 	 	
SECTION 14.	REGISTRATION; EXCHANGE; EXPENSES, ETC	28	
 	 	 	
Section 14.1.	Registration of Notes	28	
Section 14.2.	Transaction Expenses	29	
Section 14.3.	Survival	29	
 	 	 	
SECTION 15.	SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT	29	
 	 	 	
SECTION 16.	AMENDMENT AND WAIVER	29	
 	 	 	
Section 16.1.	Requirements	29	
Section 16.2.	Solicitation of Holders of Notes	30	
Section 16.3.	Binding Effect, Etc	30	
Section 16.4.	Notes Held by Company, Etc	31	
 	 	 	
SECTION 17.	NOTICES	31	
 	 	 	
SECTION 18.	INDEMNIFICATION	31	
 	 	 	
SECTION 19.	REPRODUCTION OF DOCUMENTS	32	
 	 	 	
SECTION 20.	CONFIDENTIAL INFORMATION	32	
 	 	 	
SECTION 21.	MISCELLANEOUS	33	
 	 	 	
Section 21.1.	Successors and Assigns	33	
Section 21.2.	Accounting Terms	33	
Section 21.3.  	Severability	33	
Section 21.4.	Construction, Etc	34	
Section 21.5.	Counterparts	34	
Section 21.6.	Governing Law	34	
Section 21.7.	Jurisdiction and Process; Waiver of Jury Trial	34	
Section 21.8.	Payments Due on Non-Business Days	35	

-iii-	

 	
Schedule A	-	Information Relating to Purchasers	
Schedule B	-	Defined Terms	
Schedule 4.11	-	Collateral Filings	
Schedule 5.5	-	Financial Statements	
Schedule 5.15(a)	-	Existing Indebtedness	
Schedule 5.15(b)	-	Liens not permitted by Indenture	
Schedule 5.15(c)	-	Debt Instruments	
Exhibit A	-	Form of First Supplemental Indenture	
Exhibit 4.4(a)	-	Form of Opinion of Special Counsel for the Company	
Exhibit 10.4	   -   	U.S. Tax Compliance Certificate	

-iv-	

 	
ELIZABETHTOWN GAS COMPANY
1 South Jersey Plaza, Route 54
Folsom, New Jersey 08037
$50,000,000 4.02% First Mortgage Bonds, Series 2018A-1, due December 20, 2028
$55,000,000 4.22% First Mortgage Bonds, Series 2018A-2, due December 20, 2033
$150,000,000 4.29% First Mortgage Bonds, Series 2018A-3, due December 20, 2038
$200,000,000 4.37% First Mortgage Bonds, Series 2018A-4, due December 20, 2048
$75,000,000 4.52% First Mortgage Bonds, Series 2018A-5, due December 20, 2058
December 20, 2018
To Each of the Purchasers Listed in
Schedule A Hereto:
Ladies and Gentlemen:
Elizabethtown Gas Company, a corporation organized and subsisting under the laws of the State of New Jersey (the “Company” ), agrees with each of the purchasers whose names appear at the end hereof (each, a “Purchaser”  and, collectively, the  “Purchasers” ) as follows:
Section 1.            Authorization of Bonds.
Section 1.1. Authorization of Bonds The Company has authorized and will create a series of its first mortgage bonds in an aggregate principal amount of $530,000,000 (the “ Series 2018A Bonds ”) to be issued in five Tranches as follows: (a) 4.02% First Mortgage Bonds, Series 2018A-1, due December 20, 2028 in the aggregate principal amount of $50,000,000 (the “ Series 2018A-1 Bonds ”); (b) 4.22% First Mortgage Bonds, Series 2018A-2, due December 20, 2033 in the aggregate principal amount of $55,000,000 (the “ Series 2018A-2 Bonds ”); (c) 4.29% First Mortgage Bonds, Series 2018A-3, due December 20, 2038 in the aggregate principal amount of $150,000,000 (the “ Series 2018A-3 Bonds ”); (d) 4.37% First Mortgage Bonds, Series 2018A-4, due December 20, 2048 in the aggregate principal amount of $200,000,000 (the “ Series 2018A-4 Bonds ”); and (e) 4.52% First Mortgage Bonds, Series 2018A-5, due December 20, 2058 in the aggregate principal amount of $75,000,000 (the “ Series 2018A-5 Bonds ” and together with the Series 2018A-1 Bonds, the Series 2018A-2 Bonds, the Series 2018A-3 Bonds and the Series 2018A-4 Bonds, the “ Bonds ”). The Bonds will be issued under and secured by that certain First Mortgage Indenture dated as of July 2, 2018 (the  “Original Indenture” ), between the Company and Wilmington Trust, National Association, as Trustee (the  “Trustee” ), as supplemented by that certain First Supplemental Indenture dated as of December 20, 2018 (such First Supplemental Indenture being referred to herein as the “ First Supplement ”), which will be substantially in the form attached hereto as  Exhibit A . The Original Indenture as so amended and supplemented, and as further supplemented and amended according to its terms, is herein called the  “Indenture.”  A copy of the Original Indenture has been delivered to you. The Bonds shall be issuable in fully registered form only. The Series 2018A-1 Bonds shall mature on December 20, 2028, shall bear interest at the rate of 4.02% per annum payable semiannually, on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019, shall be subject to redemption as provided in the Indenture or this Agreement, and shall be in the form established pursuant to the Indenture. The Series 2018A-2 Bonds shall mature on December 20, 2033, shall bear interest at the rate of 4.22% per annum payable semiannually, on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019, shall be subject to redemption as provided in the Indenture or this Agreement, and shall be in the form established pursuant to the Indenture. The Series 2018A-3 Bonds shall mature on December 20, 2038, shall bear interest at the rate of 4.29% per annum payable semiannually, on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019, shall be subject to redemption as provided in the Indenture or this Agreement, and shall be in the form established pursuant to the Indenture. The Series 2018A-4 Bonds shall mature on December 20, 2048, shall bear interest at the rate of 4.37% per annum payable semiannually, on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019, shall be subject to redemption as provided in the Indenture or this Agreement, and shall be in the form established pursuant to the Indenture. The Series 2018A-5 Bonds shall mature on December 20, 2058, shall bear interest at the rate of 4.52% per annum payable semiannually, on June 20 and December 20 of each year and at maturity, commencing on June 20, 2019, shall be subject to redemption as provided in the Indenture or this Agreement, and shall be in the form established pursuant to the Indenture. As permitted by the Indenture, the Bonds originally issued to you thereunder shall be dated, and bear interest from, the date of their original issue on the Closing Date.

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Certain capitalized and other terms used in this Agreement are defined in Schedule B; and references to a “Schedule”  or an  “Exhibit”  are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement. Terms used herein but not defined herein shall have the meanings set forth in the Indenture.
Section 2.            Sale and Purchase of Bonds.
Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing, Bonds in the principal amount(s) and in the Tranche(s) specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations, and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
Section 3.            Closing.
The sale and purchase of the Bonds to be purchased by each Purchaser thereof shall occur at a closing on December 20, 2018 or on such other Business Day thereafter on or prior to December 31, 2018 as may be agreed upon by the Company and the Purchasers of the Bonds (the  “Closing” ), at the offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois 60603 at 9:00 a.m. Central time. On the Closing Date, the Company will deliver to each Purchaser the Bonds of each Tranche to be purchased by such Purchaser in the form of a single Bond (or such greater number of Bonds in denominations of at least $100,000 as such Purchaser may request) of such Tranche in the amount purchased, dated the Closing Date and registered in such Purchaser’s name (or in the name of such Purchaser’s nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to an account specified pursuant to Section 4.10 hereof. If, on the Closing Date, the Company shall fail to tender such Bonds to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s reasonable satisfaction, such Purchaser shall, at such Purchaser’s election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.
-2-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 4.            Conditions to the Closing.
Each Purchaser’s obligation to purchase and pay for the Bonds to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s reasonable satisfaction, prior to or at the Closing, of the following conditions:
Section 4.1. Representations and Warranties of the Company. The representations and warranties of the Company in this Agreement shall be correct when made and at the time of the Closing.
Section 4.2. Performance; No Default. The Company shall have performed and complied with all agreements and conditions contained in each Financing Agreement required to be performed or complied with by the Company prior to or at the Closing, and after giving effect to the issue and sale of the Bonds (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing.
Section 4.3. Compliance Certificates. The Company shall have performed and complied with all agreements and conditions contained in the Indenture which are required to be performed or complied with by the Company for the issuance of the Bonds. In addition, on the date of the Closing the Company shall have delivered the following certificates:
(a) Officer’s Certificates. The Company shall have delivered to such Purchaser (i) an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Section 4 of this Agreement with respect to the Closing have been fulfilled, (ii) copies of all certificates and opinions required to be delivered to the Trustee under the Indenture in connection with the issuance of the Bonds under the Indenture, in each case, dated the date of the Closing, and (iii) copies of all certificates and opinions delivered to the Trustee under the Indenture with respect to the execution and delivery of the First Supplement; and
(b) Secretary’s Certificate. The Company shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of this Agreement and the Bonds.
-3-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 4.4. Opinions of Counsel. Such Purchaser shall have received opinions in form and substance reasonably satisfactory to such Purchaser, dated the date of the Closing (a) from Cozen O’Connor, counsel for the Company, and, covering the matters set forth in  Exhibit 4.4(a)  and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request and (b) from Chapman and Cutler LLP, the Purchasers’ special counsel in connection with such transactions, covering such matters incident to such transactions as such Purchaser may reasonably request. The Company hereby directs its counsel to deliver such opinions and understands and agrees that each Purchaser will and hereby is authorized to rely on such opinions to the extent set forth therein.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On the Closing Date, such Purchaser’s purchase of the Bonds shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.
Section 4.6. Sale of Bonds. Contemporaneously with the Closing, the Company shall sell to each Purchaser and each Purchaser shall purchase the Bonds to be purchased by it at the Closing as specified in Schedule A.
Section 4.7. Payment of Special Counsel Fees. Without limiting the provisions of Section 14.2, the Company shall have paid on or before the Closing the reasonable fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4(b) to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for each Tranche of the Bonds.
Section 4.9. Changes in Corporate Structure. The Company shall not have changed its jurisdiction of incorporation, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.
-4-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 4.10. Funding Instructions. At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company setting forth wire instructions for payment of the purchase price of the Bonds, including (a) the name and address of the transferee bank, (b) such transferee bank’s ABA number and (c) the account name and number into which the purchase price for the Bonds is to be deposited.
Section 4.11. Execution and Delivery of First Supplement; Filing and Recording of UCC Financing Statements and the First Supplement . The First Supplement shall have been duly executed and delivered by the Company and the Trustee. All UCC Financing Statements, the Indenture, the First Supplement or other instruments with respect thereto as may be necessary shall have been duly filed or recorded (or, in the case of the First Supplement, duly submitted for recording) in such manner and in such places as is reasonably satisfactory to the Purchasers (and their special counsel) and the Company and as described in Schedule 4.11 (collectively, the  “Collateral Filings” ), and no other instruments shall be required to be filed to establish and perfect the Lien of the Trustee upon the Mortgaged Property created by the Indenture (including the First Supplement), which can be perfected by filing the Indenture, the First Supplement or a UCC Financing Statement under the UCC, and the Company shall have delivered satisfactory evidence of such filings and recordings, except that the Company shall deliver to the Purchasers (and their special counsel) evidence of the recording of the First Supplement promptly after such recordings are made.
Section 4.12. Title Policy. On or prior to the date of the Closing, the Company shall have delivered a standard American Land Title Association 2006 Form mortgagee title policy issued by a title insurance company with an AM Best rating of A or better (or a reasonably comparable rating from another corporation providing similar ratings), naming the Trustee as the insured, insuring that the Indenture constitutes a Lien on each tract and parcel of land and improvements subject to the Lien of the Indenture having an assessed value of at least $1,000,000, subject to no Lien thereon prior to the Lien of the Indenture, except Permitted Liens and standard exceptions in an ALTA title insurance policy, and including typical and applicable endorsements.
Section 4.13. Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be reasonably satisfactory to each Purchaser and its special counsel, and each Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request. Each Purchaser that so requests shall have received a copy of the Indenture (together with all amendments and supplements thereto), certified by the Company as of the date of the Closing, exclusive of property exhibits, recording information and the like.
-5-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 5.            Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. The Company is a corporation duly organized and validly existing under the State of New Jersey and is in good standing under the laws of the State of New Jersey, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver each Financing Agreement (and, in the case of the Indenture, had the corporate power and authority to execute and deliver the Indenture at the time of execution and delivery thereof) and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. Each Financing Agreement has been duly authorized by all necessary corporate action on the part of the Company, and each Financing Agreement constitutes, and upon execution and delivery thereof each Bond will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated and TD Securities (USA) LLC, has delivered to you and each other Purchaser a copy of a Confidential Information Memorandum, dated September 2018 (the  “Memorandum” ), relating to the Company. The Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Company. This Agreement, the Memorandum, the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and the financial statements listed in Schedule 5.5, in each case, delivered to the Purchasers prior to the date of this Agreement (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements being referred to, collectively, as the  “Disclosure Documents” ), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since September 19, 2018, there has been no change in the financial condition, operations, business or properties of the Company except changes that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company that would reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.
Section 5.4. Subsidiaries. The Company has no Subsidiaries.
Section 5.5. Financial Statements; Material Liabilities. The Company has delivered to each Purchaser copies of the financial statements of the Company listed in Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the financial position of the Company as of the respective dates specified in such financial statements and the results of its operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company does not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents or in Schedule 5.15.
-6-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by the Company of each Financing Agreement will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien, other than the Lien created under the Indenture, in respect of any property of the Company, under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company is bound or by which the Company or any of its properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company, including, without limitation, the Public Order, or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Company of any Financing Agreement, except for any filing that has already been made or any approval that has already been obtained, including without limitation the Public Order, or for certain post-Closing filing requirements with the Board of Public Utilities, State of New Jersey, as required by the Public Order. The period of time for filing an appeal as of right to the Superior Court of New Jersey, Appellate Division with respect to the Public Order has expired.
Section 5.8. Litigation; Observance of Statutes and Orders. (a) There are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or any property of the Company in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(b) The Company is not (i) in default under any term of any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including without limitation Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company has filed all tax returns that are required to have been filed in any jurisdiction, and has paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon it or its properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (a) the amount of which is not individually or in the aggregate Material or (b) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company has established adequate reserves in accordance with GAAP. The Company knows of no basis for any other tax or assessment that would reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of federal, state or other taxes for all fiscal periods are adequate. The Company was incorporated in October 2017 and, accordingly, has not had any federal income tax liabilities finally determined (whether by reason of completed audits or the statute of limitations having run).
-7-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 5.10. Title to Property; Leases. The Company has good and sufficient title to its properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens (other than the Lien created under the Indenture) prohibited by the Indenture. To the Company’s knowledge, all Material leases are valid and subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. The Company owns or possesses all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that, individually or in the aggregate, are Material to its business as now being conducted, without known conflict with the rights of others, except for those conflicts that would not be reasonably expected to have a Material Adverse Effect.
Section 5.12. Compliance with ERISA. (a) Each Plan, other than any Multiemployer Plan, operated and administered by the Company or any ERISA Affiliate and each Plan with which the Company or any ERISA Affiliate has a relationship has been operated and administered in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and would not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to “employee benefit plans” (as defined in Section 3 of ERISA), which liability has resulted or would reasonably be expected to result in a Material Adverse Effect, and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to Section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or Section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Plan, other than such liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by more than $10,000,000 in the aggregate for all Plans. The term “benefit liabilities” has the meaning specified in Section 4001 of ERISA and the terms “current value” and “present value” have the meanings specified in Section 3 of ERISA.
-8-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
(c) The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by Section 4980B of the Code) of the Company is not Material.
(e) The execution and delivery of this Agreement and the issuance and sale of the Bonds hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code. The representation by the Company to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of each Purchaser’s representation in Section 6.2 as to the sources of the funds to be used to pay the purchase price of the Bonds to be purchased by such Purchaser.
Section 5.13. Private Offering by the Company. Neither the Company nor anyone acting on the Company’s behalf has offered the Bonds or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than forty (40) other Institutional Investors, each of which has been offered the Bonds in connection with a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Bonds to the registration requirements of Section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will use the proceeds of the sale of the Bonds to repay debt, including amounts outstanding under that credit agreement dated as of June 26, 2018 referred to on Schedule 5.15(a), and for general corporate purposes, and in compliance with all laws referenced in Section 5.16. No part of the proceeds from the sale of the Bonds hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 1% of the value of the assets of the Company, and the Company does not have any present intention that margin stock will constitute more than 1% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
-9-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 5.15. Existing Indebtedness. (a) Except as described therein, Schedule 5.15(a) sets forth a complete and correct list of all outstanding Indebtedness of the Company as of September 30, 2018 (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any, and guaranty thereof, if any), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Indebtedness of the Company. The Company is not in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Company, and no event or condition exists with respect to any Indebtedness of the Company, that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15(b), the Company has not agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by the Indenture.
(c) The Company is not a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of the Company, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of the Company, except as specifically indicated in Schedule 5.15(c).
Section 5.16. Foreign Assets Control Regulations, Etc. (a) Neither the Company nor any Controlled Entity (i) is a Blocked Person, (ii) has been notified that its name appears or may in the future appear on a State Sanctions List or (iii) has been notified that it is a target of sanctions that have been imposed by the United Nations or the European Union.
(b) Neither the Company nor any Controlled Entity (i) has, to the Company’s knowledge, violated, been found in violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to the Company’s knowledge, is under investigation by any Governmental Authority for possible violation of any U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws.
(c) No part of the proceeds from the sale of the Bonds hereunder:
(i) constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by the Company or any Controlled Entity, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (B) for any purpose that would cause any Purchaser to be in violation of any U.S. Economic Sanctions Laws or (C) otherwise in violation of any U.S. Economic Sanctions Laws;
(ii) will be used, directly or indirectly, in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Money Laundering Laws; or
(iii) will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any official of a Governmental Authority or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Corruption Laws.
-10-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
(d) The Company has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.
Section 5.17. Status under Certain Statutes. The Company is not subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 2005, as amended, the ICC Termination Act of 1995, as amended, nor is the Company subject to rate regulation under the Federal Power Act, as amended. The Company is a “transmitting utility” as such term is defined in Section 9-102(a)(80) of the Uniform Commercial Code adopted in the State of New Jersey (N.J.S.A. 12A:9-102(a)(80)).
Section 5.18. Environmental Matters. (a) The Company has no knowledge of any liability, has not received any notice of any liability, and no proceeding has been instituted raising any liability against the Company or any of its real properties or other assets now or formerly owned, leased or operated by the Company, alleging any damage to the environment or violation of any Environmental Laws, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect.
(b) The Company has no knowledge of any facts which would give rise to any liability, public or private, for violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by the Company or to other assets or their use, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect.
(c) The Company has not stored any Hazardous Materials on real properties now or formerly owned, leased or operated by it nor has it disposed of any Hazardous Materials in each case in a manner contrary to any Environmental Laws that would reasonably be expected to result in a Material Adverse Effect.
(d) All buildings on all real properties now owned, leased or operated by the Company are in compliance with applicable Environmental Laws, except where failure to comply would not reasonably be expected to result in a Material Adverse Effect.
-11-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 5.19. Lien of Indenture. The Indenture (including the First Supplement) constitutes a direct and valid Lien upon all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the Lien thereof, subject only to Permitted Liens, and will create a similar Lien upon all properties and assets acquired by the Company after the date hereof which are required to be subjected to the Lien of the Indenture, when acquired by the Company, subject only to the exceptions referred to in the Indenture and Permitted Liens, and subject, further, as to the real property, to the recordation of a supplement to the Indenture describing such after-acquired property and, as to personal property, the filing of a financing statement if necessary with respect to the after-acquired collateral; the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture; and the Original Indenture has been duly recorded, and the First Supplement has been duly submitted for recording, as a mortgage of real estate, and any required filings with respect to personal property and fixtures subject to the Lien of the Indenture have been duly made in each place in which such recording or filing is required to protect, preserve and perfect the Lien of the Indenture; and all taxes and recording and filing fees required to be paid with respect to the execution, recording or filing of the Indenture (including the First Supplement), the filing of any financing statements related thereto and similar documents and the issuance of the Bonds have been paid. The Original Indenture has been recorded, and the First Supplement has been duly submitted for recording, in the real estate recording office in each county listed on Schedule 4.11, which counties collectively include all counties where the Company owns property subject to the Lien of the Indenture.
Section 5.20. Filings under Indenture. No action that has not already been taken, including any filing, registration, notice or approval, is necessary or advisable in New Jersey, New York or any other jurisdiction to establish or protect for the benefit of the Trustee and the Holders of Bonds that the Bonds are secured by the Lien of the Indenture, other than recording the First Supplement in the counties in New Jersey referred to therein.
Section 5.21. Status of Certain Material Agreements. No amendment, modification, supplement or other change has been made to the Indenture other than the First Supplement.
Section 6.            Representations of the Purchasers.
Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is purchasing the Bonds for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of the property of such Purchaser or such pension or trust fund shall at all times be within the control of such Purchaser or such pension or trust fund. Each Purchaser understands that the Bonds have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Bonds. Each Purchaser understands that the Bonds are being offered and sold in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements and understandings set forth herein in order to determine the applicability of such exemptions and the suitability of such Purchaser to acquire the Bonds.
-12-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 6.2. Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a  “Source” ) to be used by such Purchaser to pay the purchase price of the Bonds to be purchased by such Purchaser hereunder:
(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption ( “PTE” ) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “ NAIC Annual Statement ”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or
(c) the Source is either (i) an “insurance company pooled separate account,” (within the meaning of PTE 90-1) or (ii) a “bank collective investment fund” (within the meaning of PTE 91-38) and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “ QPAM Exemption ”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption); no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an “affiliate” (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM; the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied; neither the QPAM nor a Person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part (VI)(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption” )) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption); the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied; neither the INHAM nor a Person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or
(h) the Source does not include “plan assets” of any employee benefit plan, other than a plan exempt from the coverage of Title I of ERISA.
As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in Section 3 of ERISA.
Section 6.3. Purchaser Status; Experience. Each Purchaser separately represents that such Purchaser is, and on the Closing Date will be, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Bonds, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Bonds and is able to afford a complete loss of such investment.
Section 6.4. Access to Information. Each Purchaser separately acknowledges that such Purchaser has reviewed the Disclosure Documents and has been afforded (a) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Bonds and the risks of investing in the Bonds; (b) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (c) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
-14-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 7.            Information as to Company.
Section 7.1. Financial and Business Information. The Company shall deliver to each Holder of a Bond that is an Institutional Investor:
(a) Quarterly Statements - within 60 days after the end of each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of:
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income and changes in cash flows of the Company and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;  provided  that delivery within the time period specified above of copies of the Company’s Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(a); and  provided, further,  that the Company shall be deemed to have made such delivery of such Form 10-Q if it shall have timely made such Form 10-Q available on “EDGAR” or on, or through a link on, the website of the Company or Parent and shall have given each Institutional Investor prior notice of such availability on EDGAR or on or through the website of the Company or Parent in connection with each delivery (such availability and notice thereof being referred to as  “Electronic Delivery” );
(b) Annual Statements - within 120 days after the end of each fiscal year of the Company, duplicate copies of:
(i) a consolidated balance sheet of the Company and its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income and changes in cash flows and of the Company and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances,  provided  that the delivery within the time period specified above of the Company’s Annual Report on Form 10-K for such fiscal year (together with the Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(b), and  provided, further,  that the Company shall be deemed to have made such delivery of such Form 10-K if it shall have timely made Electronic Delivery thereof;
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
(c) SEC and Other Reports - except for the filings referred to in Section 7.1(a) and (b) above, promptly upon their becoming available and, to the extent applicable, one copy of (i) each financial statement, report, notice or proxy statement sent by the Company or any Subsidiary to public securities holders generally, and (ii) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such Institutional Investor), and each prospectus and all amendments thereto filed by the Company or any Subsidiary with the SEC and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning developments that are Material,  provided  that the Company shall be deemed to have made such delivery of such information if it shall have timely made Electronic Delivery thereof;
(d) Notice of Default or Event of Default - promptly, and in any event within five Business Days after a Responsible Officer becomes aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11(f) hereof, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;
(e) ERISA Matters - promptly, and in any event within ten Business Days after a Responsible Officer becomes aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in Section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect;
(f) Supplemental Indentures - promptly, and in any event within five days after the execution and delivery thereof, a copy of any supplement to the Indenture that the Company from time to time may hereafter execute and deliver which amends the Indenture in any material respect; and
(g) Requested Information - with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company or any of its Subsidiaries or relating to the ability of the Company to perform its obligations hereunder and under the Bonds as from time to time may be reasonably requested by any Holder of a Bond that is an Institutional Investor or such information regarding the Company required to satisfy the requirements of 17 CFR §230.144A, as amended from time to time, in connection with any contemplated transfer of the Bonds.
Section 7.2. Officer’s Certificate. Each set of financial statements delivered to a Holder of a Bond that is an Institutional Investor pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance - (i) the information (including detailed calculations) required in order to establish whether the Company was in compliance with the requirements of the Indenture during the quarterly or annual period covered by the statements then being furnished to the extent required to be provided under the Indenture; and (ii) to the extent the Company issued additional Securities under the Indenture during the period covered by the statements being furnished, any calculations that the Company provided to the Trustee to show compliance with the Indenture in connection with the issuance of such additional Securities.
-17-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
(b) Event of Default - a statement that such Senior Financial Officer has reviewed the relevant terms hereof and of the Indenture and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default under either the Indenture or this Agreement, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.
Section 7.3. Visitation. The Company shall permit the representatives of each Holder of a Bond that is an Institutional Investor:
(a) No Default - if no Default or Event of Default then exists, at the expense of such Institutional Investor and upon reasonable prior notice to the Company, to visit the principal executive office of the Company, to discuss the affairs, finances and accounts of the Company and its Subsidiaries with the Company’s officers to the extent they are reasonably available, and, with the consent of the Company (which consent will not be unreasonably withheld), to visit the other offices and properties of the Company and each Subsidiary, all at such reasonable times and as often as may be reasonably requested in writing; and
(b) Default - if a Default or Event of Default then exists and is continuing, at the expense of the Company to visit and inspect any of the offices or properties of the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all at such times and as often as may be reasonably requested.
Section 8.            Payment and Prepayment of the Bonds.
Section 8.1. Maturity. As provided therein, the entire unpaid principal balance of each of the Series 2018A Bonds shall be due and payable on the respective stated maturity dates thereof.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Bonds, in an amount not less than 5% of the aggregate principal amount of the Bonds then outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, together with interest accrued thereon to the date of such prepayment, plus the Make-Whole Amount determined for the prepayment date with respect to such principal amount of each Bond that is then being so prepaid. The Company will give each Holder of Bonds written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment, unless the Company and the Required Holders agree to another time period pursuant to Section 16. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Bonds to be prepaid on such date, the principal amount of each Bond held by such Holder to be prepaid (determined in accordance with Section 8.3), and any other information required to be delivered under the terms of the Indenture, and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each Holder of Bonds a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date. Notwithstanding the foregoing, (a) the Series 2018A-1 Bonds may be prepaid without paying the Make-Whole Amount, at the Company’s option, beginning on September 20, 2028, (b) the Series 2018A-2 Bonds may be prepaid without paying the Make-Whole Amount, at the Company’s option, beginning on September 20, 2033, (c) the Series 2018A-3 Bonds may be prepaid without paying the Make-Whole Amount, at the Company’s option, beginning on August 20, 2038, (d) the Series 2018A-4 Bonds may be prepaid without paying the Make-Whole Amount, at the Company’s option, beginning on June 20, 2048 and (e) the Series 2018A-5 Bonds may be prepaid without paying the Make-Whole Amount, at the Company’s option, beginning on June 20, 2058.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of the Bonds pursuant to the provisions of Section 8.2, the principal amount of the Bonds to be prepaid shall be allocated among all of the Bonds at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of Bonds pursuant to this Section 8, the principal amount of each Bond to be prepaid shall mature and become due and payable on the date fixed for such prepayment (which shall be a Business Day), together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Bond paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Bond shall be issued in lieu of any prepaid principal amount of any Bond.
Section 8.5. Purchase of Bonds. The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Bonds except (a) upon the payment or prepayment of the Bonds in accordance with the terms of this Agreement and the Bonds or (b) pursuant to a written offer to purchase all outstanding Bonds made by the Company or an Affiliate pro rata to the Holders of the Bonds upon the same terms and conditions. The Company will promptly cancel all Bonds acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Bonds pursuant to any provision of this Agreement and no Bonds may be issued in substitution or exchange for any such Bonds (other than with respect to any principal amount of any such Bond that was not so purchased, redeemed, prepaid or otherwise acquired).
Section 8.6. Make-Whole Amount for the Bonds. The term “Make-Whole Amount” means, with respect to any Bond, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Bond over the amount of such Called Principal,  provided  that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
“Called Principal” means, with respect to any Bond of any Tranche, the principal of such Bond that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1 or any other Financing Agreement, as the context requires.
“Discounted Value” means, with respect to the Called Principal of any Bond, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Bonds of such Tranche is payable) equal to the Reinvestment Yield with respect to such Called Principal.
“Reinvestment Yield” means, with respect to the Called Principal of any Bond, 0.50% plus the yield to maturity implied by the yield(s) reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities  ( “Reported” )  having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the Bond.
If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then  “Reinvestment Yield”  means, with respect to the Called Principal of any Bond, 0.50% plus the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the Bond.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
“Remaining Average Life” means, with respect to any Called Principal, the number of years obtained by dividing (a) such Called Principal into (b) the sum of the products obtained by multiplying (i) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (ii) the number of years, computed on the basis of a 360-day year composed of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.
“Remaining Scheduled Payments” means, with respect to the Called Principal of any Bond, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date,  provided  that if such Settlement Date is not a date on which interest payments are due to be made under the Bond, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1, as the context requires.
“Settlement Date” means, with respect to the Called Principal of any Bond, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
Section 8.7. Change in Control.
(a) Notice of Change in Control. The Company will, within 15 Business Days after any Responsible Officer has knowledge of the occurrence of any Change in Control, give written notice of such Change in Control to each Holder of Bonds. If a Change in Control has occurred, such notice shall contain and constitute an offer to prepay the Bonds as described in subparagraph (b) of this Section 8.7 and shall be accompanied by the certificate described in subparagraph (e) of this Section 8.7.
(b) Offer to Prepay Bonds. The offer to prepay Bonds contemplated by subparagraph (a) of this Section 8.7 shall be an offer to prepay, in accordance with and subject to this Section 8.7, all, but not less than all, of the Bonds held by each holder (in this case only,  “holder”  in respect of any Bond registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner) on a date specified in such offer (the  “Proposed Prepayment Date” ). If such Proposed Prepayment Date is in connection with an offer contemplated by subparagraph (a) of this Section 8.7, such date shall be not less than 20 days and not more than 45 days after the date of such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the 30th day after the date of such offer).
(c) Acceptance; Rejection. A Holder of Bonds may accept the offer to prepay made pursuant to this Section 8.7 by causing a notice of such acceptance or rejection to be delivered to the Company at least five Business Days prior to the Proposed Prepayment Date. A failure by a Holder of Bonds to respond to an offer to prepay made pursuant to this Section 8.7 shall be deemed to constitute a rejection of such offer by such Holder.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
(d) Prepayment. Prepayment of the Bonds to be prepaid pursuant to this Section 8.7 shall be at 100% of the principal amount of such Bonds, together with interest on such Bonds accrued to the date of prepayment. The prepayment shall be made on the Proposed Prepayment Date.
(e) Officer’s Certificate. Each offer to prepay the Bonds pursuant to this Section 8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this Section 8.7; (iii) the principal amount of each Bond offered to be prepaid; (iv) the interest that would be due on each Bond offered to be prepaid, accrued to the Proposed Prepayment Date; (v) that the conditions of this Section 8.7 have been fulfilled; and (vi) in reasonable detail, the nature and date or proposed date of the Change in Control.
(f) Effect on Required Payments. The amount of each payment of the principal of the Bonds made pursuant to this Section 8.7 shall be applied against and reduce each of the then remaining principal payments due on such Bonds pursuant to Section 8.1 by a percentage equal to the aggregate principal amount of such Bonds so paid divided by the aggregate principal amount of such Bonds outstanding immediately prior to such payment.
(g) “Change in Control” Defined. “Change in Control” means the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Company to any Person or “group” (within the meaning of the Exchange Act and the rules of the SEC thereunder in effect on the Closing Date), or
(ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the Closing Date) of 50% or more of the outstanding ownership interests of the Company, other than an acquisition by Parent or any direct or indirect wholly-owned Subsidiary of Parent of such outstanding ownership interests of the Company.
Section 9.            Affirmative Covenants.
The Company covenants that so long as any of the Bonds are outstanding:
Section 9.1. Compliance with Law. Without limiting Section 10.3, the Company will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA, Environmental Laws, the USA Patriot Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 9.2. Insurance. The Company will and will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated.
Section 9.3. Maintenance of Properties. The Company will and will cause each of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times,  provided  that this Section shall not prevent the Company or any Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Company has concluded that such discontinuance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes. The Company will and will cause each of its Subsidiaries to, file all income tax or similar tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies payable by any of them, to the extent the same have become due and payable and before they have become delinquent, provided that neither the Company nor any Subsidiary need pay any such tax, assessment, charge or levy if (a) the amount, applicability or validity thereof is contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary or (b) the nonpayment of all such taxes, assessments, charges and levies in the aggregate would not reasonably be expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. The Company will at all times preserve and keep in full force and effect the corporate existence of each of its Subsidiaries (unless merged into the Company or a wholly-owned Subsidiary) and all rights and franchises of its Subsidiaries unless, in the good faith judgment of the Company or such Subsidiary, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.
Section 9.6. Books and Records. The Company will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over the Company or such Subsidiary, except where any such nonconformity would not reasonably be expected to have a Material Adverse Effect.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 9.7. Compliance with Material Agreements. The Company will comply in all material respects with the material terms, conditions and provisions of all Material agreements, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect.
Section 10.            Negative Covenants.
The Company covenants that so long as any of the Bonds are outstanding:
Section 10.1. Transactions with Affiliates. The Company will not and will not permit any Subsidiary to enter into directly or indirectly any Material transaction or Material group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Company or another Subsidiary), except pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.
Section 10.2. Line of Business. The Company will not engage in any business if, as a result, the general nature of the business in which the Company and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Company is engaged on the date of this Agreement.
Section 10.3. Terrorism Sanctions Regulations. The Company will not and will not permit any Controlled Entity (a) to become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or any Person that is the target of sanctions imposed by the United Nations or by the European Union, or (b) directly or indirectly to have any investment in or engage in any dealing or transaction (including, without limitation, any investment, dealing or transaction involving the proceeds of the Bonds) with any Person if such investment, dealing or transaction (i) would cause any Holder of Bonds to be in violation of or subject to sanctions under any law or regulation applicable to such Holder, or (ii) is prohibited by or subject to sanctions under any U.S. Economic Sanctions, or (c) to engage, nor shall any Affiliate of either engage, in any activity that could subject such Person or any Holder of Bonds to sanctions under CISADA or any similar law or regulation with respect to Iran or any other country that is subject to U.S. Economic Sanctions.
Section 10.4. Non-US Investors. Except as otherwise required by applicable law, the Company agrees that it will not withhold from any applicable payment to be made to a holder of a Bond that is not a United States Person any tax so long as such holder shall have delivered to the Company (in such number of copies as shall be requested) on or about the date on which such holder becomes a holder under this Agreement (and from time to time thereafter upon the reasonable request of the Company), executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor form), as applicable, as well as the applicable U.S. Tax Compliance Certificate substantially in the form attached as  Exhibit 10.4 , in both cases correctly completed and executed.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 11.           Events of Default.
An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Bond when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or;
(b) the Company defaults in the payment of any interest on any Bond for more than five Business Days after the same becomes due and payable; or
(c) the occurrence of any “Event of Default” under the Indenture (other than defaults described in Sections 10.1(a) and 10.1(b) of the Indenture); or
(d) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement, the Indenture, or in any writing furnished in connection with the transactions contemplated hereby, proves to have been false, incorrect or misleading in any material respect on the date as of which made; or
(e) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in paragraphs (a), (b) and (c) of this Section 11) and such default is not remedied, in the case of defaults hereunder, within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any Holder of a Bond (any such written notice to be identified as a “notice of default” and to refer specifically to this paragraph (e) of Section 11); or
(f) (i) the Company or any Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness (other than the Bonds and any other Securities authenticated under the Indenture) that is outstanding in an aggregate principal amount of at least $50,000,000 beyond any period of grace provided with respect thereto, or (ii) the Company or any Subsidiary is in default in the performance of or compliance with any term of any instrument, mortgage, indenture or other agreement relating to any Indebtedness (other than the Bonds and any other Securities authenticated under the Indenture) in an aggregate principal amount of at least $50,000,000 or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared, due and payable, or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests), the Company or any Subsidiary has become obligated to purchase or repay Indebtedness (other than the Bonds and any other Securities authenticated under the Indenture) before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $50,000,000; or
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
(g) a final judgment or judgments at any one time outstanding for the payment of money aggregating in excess of $50,000,00 (except to the extent covered by independent third-party insurance as to which the insurer acknowledges in writing that such judgment or judgments are covered by such insurance) are rendered against one or more of the Company or any Subsidiary and which judgments are not, within 30 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 30 days after the expiration of such stay; or
(h) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under Section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of Section 4001(a)(18) of ERISA) for which the Company or any ERISA Affiliate is obligated under all Plans, determined in accordance with Title IV of ERISA, shall exceed $50,000,000, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability (other than for premium payments due to the PBGC) pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that could increase the liability of the Company or any Subsidiary thereunder;  provided  that any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, would reasonably be expected to have a Material Adverse Effect.
As used in Section 11(h), the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in Section 3 of ERISA.
SECTION 12.            REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default has occurred with respect to the Company in connection with an “Event of Default” under Sections 10.1(d) or 10.1(e) of the Indenture, all of the Bonds then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any Holder or Holders of more than 50% in aggregate principal amount of the Bonds at the time outstanding may at any time during the continuation of such Event of Default, at its or their option, by notice or notices to the Company, declare all of the Bonds then outstanding to be immediately due and payable.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
(c) If any Event of Default described in paragraph (a) or (b) of Section 11 has occurred and is continuing with respect to any Bonds, any Holder or Holders of Bonds at the time outstanding affected by such Event of Default may at any time during the continuation of such Event of Default, at its or their option, by notice or notices to the Company, declare all of the Bonds held by such Holder or Holders to be immediately due and payable.
Upon any Bond’s becoming due and payable under this Section 12.1 or Section 10.2 of the Indenture, whether automatically or by declaration, such Bond will forthwith mature and the entire unpaid principal amount of such Bond, plus (i) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (ii) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each Holder of a Bond has the right to maintain its investment in the Bonds free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Bonds are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
Section 12.2. Exercise of Remedies Under Indenture. The Bonds are Outstanding (as defined in the Indenture) Securities under the Indenture, secured equally and ratably by the Lien of the Indenture without preference or priority over any other series of Outstanding Securities. All rights and remedies against the Mortgaged Property under the Indenture shall be enforced as provided under the terms of the Indenture.
Section 12.3. Other Remedies. Subject to Section 12.2 hereof, if any Default or Event of Default has occurred and is continuing, and irrespective of whether any Bonds have become or have been declared immediately due and payable under Section 12.1, the Holder of any Bond at the time outstanding may proceed to protect and enforce the rights of such Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Bond, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.
Section 12.4. Rescission. At any time after any the Bonds have been declared due and payable pursuant to clause (b) or (c) of Section 12.1, the Holders of more than 50% in aggregate principal amount of the Bonds then outstanding, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Bonds, all principal of and Make-Whole Amount, if any, on any Bonds that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Bonds, at the Default Rate, (b) neither the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 16, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to any Bonds. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 12.5. No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any Holder of any Bond in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such Holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement or by any Bond upon any Holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Section 14, the Company will pay to the Holder of each Bond on demand such further amount as shall be sufficient to cover all reasonable costs and expenses of such Holder incurred in any enforcement or collection under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.
Section 13.           Payments on Bonds.
Section 13.1. Home Office Payment. So long as any Purchaser or its nominee shall be the Holder of any Bond, and notwithstanding anything contained in the Indenture or in such Bond to the contrary, the Company will pay all sums becoming due on such Bond for principal, Make-Whole Amount or premium, if any, and interest by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Bond or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Bond, such Purchaser shall surrender such Bond for cancellation, reasonably promptly after any such request, to the Trustee at its principal executive office or at the place of payment most recently designated by the Trustee pursuant to the Indenture. Prior to any sale or other disposition of any Bond held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Bond to the Company in exchange for a new Bond or Bonds pursuant to Section 3.5 of the Indenture. The Company will afford the benefits of this Section 13.1 to any Institutional Investor that is the direct or indirect transferee of any Bond purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Bond as the Purchasers have made in this Section 13.1.
Section 14.            Registration; Exchange; Expenses, Etc.
Section 14.1. Registration of Bonds. The Company shall cause the Trustee to keep a register for the registration of Bonds and registration of transfers of Bonds in accordance with Section 3.5 of the Indenture.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 14.2. Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Company will pay all reasonable costs and expenses (including reasonable attorneys’ fees of one special counsel and, if reasonably required by the Required Holders, one local or other counsel) incurred (a) by the Purchasers in connection with such transactions, and (b) by the Holders of the Bonds in connection with any amendments, waivers or consents under or in respect of any Financing Agreement (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (i) the reasonable costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under any Financing Agreement or in responding to any subpoena or other legal process or informal investigative demand issued in connection with any Financing Agreement, or by reason of being a Holder of Bonds, (ii) the reasonable costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated by any Financing Agreement and (iii) the reasonable costs and expenses incurred in connection with the initial filing of any Financing Agreement and all related documents and financial information with the SVO, provided that such costs and expenses under this clause (iii) shall not exceed $5,000 for each Tranche of the Bonds. The Company will pay, and will save each Purchaser and each other Holder of a Bond harmless from, all claims in respect of any fees, costs or expenses if any, of brokers and finders (other than those, if any, retained by a Purchaser or other Holder in connection with its purchase of the Bonds).
Section 14.3. Survival. The obligations of the Company under this Section 14 will survive the payment or transfer of any Bond, the enforcement, amendment or waiver of any provision of any Financing Agreement, and the termination of any Financing Agreement.
Section 15.            Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein shall survive the execution and delivery of the Financing Agreements, the purchase or transfer by any Purchaser of any Bond or portion thereof or interest therein and the payment of any Bond, and may be relied upon by any subsequent Holder of a Bond, regardless of any investigation made at any time by or on behalf of such Purchaser or any other Holder of a Bond. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement. Subject to the preceding sentence, the Financing Agreements embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.
Section 16.            Amendment and Waiver.
Section 16.1. Requirements. The Company will not cause or permit the Indenture to change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest or of the Make-Whole Amount, if any, on the Bonds as set forth in the Indenture and the Bonds, without the written consent of the Holder of each Bond at the time outstanding affected thereby. This Agreement and the Bonds may be amended, and the observance of any term hereof or of the Bonds may be waived (either retroactively or prospectively), with (and only with) the written consent of the Company and the Required Holders, except that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term, will be effective as to any Holder of Bonds unless consented to by such Holder of Bonds in writing, and (b) no such amendment or waiver may, without the written consent of all of the Holders of Bonds at the time outstanding affected thereby, (i) subject to the provisions of Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest (if such change results in a decrease in the interest rate) or of the Make-Whole Amount, if any, on, the Bonds, (ii) change the percentage of the principal amount of the Bonds the Holders of which are required to consent to any such amendment or waiver, or (iii) amend any of Sections 8, 10.4, 11(a), 11(b), 12, 16 or 20.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 16.2. Solicitation of Holders of Bonds.
(a) Solicitation. The Company will provide each Holder of Bonds (irrespective of the amount of Bonds then owned by it) with sufficient information, sufficiently far in advance of the date a decision is required, to enable such Holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Bonds. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Section 16 to each Holder of outstanding Bonds promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite Holders of Bonds.
(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise (other than legal fees or other related expenses), or grant any security or provide other credit support, to any Holder of Bonds as consideration for or as an inducement to the entering into by any Holder of Bonds or any waiver or amendment of any of the terms and provisions hereof unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each Holder of Bonds then outstanding even if such Holder did not consent to such waiver or amendment.
(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Section 16.2 by the Holder of any Bond that has transferred or has agreed to transfer such Bond to the Company, any Subsidiary or any Affiliate of the Company and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such Holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other Holders of Bonds that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such transferring Holder.
Section 16.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in this Section 16 applies equally to all Holders of Bonds and is binding upon them and upon each future Holder of any Bond and upon the Company without regard to whether such Bond has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and the Holder of any Bond nor any delay in exercising any rights hereunder or under any Bond shall operate as a waiver of any rights of any Holder of such Bond. As used herein, the term “ this Agreement ” and references thereto shall mean this Bond Purchase Agreement as it may from time to time be amended or supplemented.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 16.4. Bonds Held by Company, Etc. Solely for the purpose of determining whether the Holders of the requisite percentage of the aggregate principal amount of Bonds then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement or the Bonds, or have directed the taking of any action provided herein or in the Bonds to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Bonds then outstanding, Bonds directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.
Section 17.            Notices.
Except for Electronic Deliveries, all notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or nominee shall have specified to the Company in writing;
(ii) if to any other Holder of any Bond, to such Holder at such address as such Holder shall have specified to the Company in writing;
(iii) if to the Company, to the Company at its address set forth at the beginning hereof to the attention of Treasurer, or at such other address as the Company shall have specified to the Holder of each Bond in writing; or
(iv) if to the Trustee, to Wilmington Trust, National Association, 1100 North Market Street, Wilmington, Delaware 19890 or at such other address as the Trustee shall have specified to the Company and each other party hereto in writing.
Notices under this Section 17 will be deemed given only when actually received.
Section 18.            Indemnification.
The Company hereby agrees to indemnify and hold the Purchasers harmless from, against and in respect of any and all loss, liability and reasonable expense (including reasonable attorneys’ fees) arising from any misrepresentation or nonfulfillment of any undertaking on the part of the Company under this Agreement. The indemnification obligations of the Company under this Section 18 shall survive the execution and delivery of this Agreement, the delivery of the Bonds to the Purchasers and the consummation of the transactions contemplated herein.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 19.            Reproduction of Documents.
This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Bonds themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 19 shall not prohibit the Company or any other Holder of Bonds from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.
Section 20.            Confidential Information.
For the purposes of this Section 20, “Confidential Information” means information delivered to any Purchaser or Holder of a Bond by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement or the Bonds that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser or Holder as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser or Holder prior to the time of such disclosure without an obligation of confidentiality, (b) subsequently becomes publicly known through no act or omission by such Purchaser or Holder or any person acting on such Purchaser’s or Holder’s behalf, (c) otherwise becomes known to such Purchaser or Holder other than through disclosure by the Company or any Subsidiary or (d) constitutes financial statements delivered to such Purchaser or Holder under Section 7.1 of this Agreement that are otherwise publicly available. Each Purchaser and Holder will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser or Holder in good faith to protect confidential information of third parties delivered to such Purchaser or Holder and shall use such information only for purposes of monitoring its investment in the Bonds, provided that such Purchaser or Holder may deliver or disclose Confidential Information to (i) its directors, trustees, officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by the Bonds and who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 20), (ii) its financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 20, (iii) any other Holder of any Bond, (iv) any Institutional Investor to which it sells or offers to sell such Bond or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 20), (v) any Person from which it offers to purchase any security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 20), (vi) any federal or state or provincial regulatory authority having jurisdiction over such Purchaser or Holder, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s or Holder’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser or Holder, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser or Holder is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser or Holder may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under such Purchaser’s or Holder’s Bonds and this Agreement. Each Holder of a Bond, by its acceptance of a Bond, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any Holder of a Bond of information required to be delivered to such Holder under this Agreement or requested by such Holder (other than a Holder that is a party to this Agreement or its nominee), such Holder will enter into an agreement with the Company embodying the provisions of this Section 20.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 21.            Miscellaneous.
Section 21.1. Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent Holder of a Bond) whether so expressed or not; provided, however, the provisions of Section 7 hereof and any other provision of this Agreement that relates only to Institutional Investors shall only apply to Institutional Investors.
Section 21.2. Accounting Terms. All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (a) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (b) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with the covenants set out in any Financing Agreement, any election by the Company to measure an item of Indebtedness using fair value (as permitted by Accounting Standard Codification Topic No. 825-10-25 -  Recognition,  subsection  Fair Value Option  or any similar accounting standard) shall be disregarded and such determination shall be made by valuing indebtedness at 100% of the outstanding principal thereof, unless otherwise provided in such Financing Agreement.
Section 21.3. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.
-33-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Section 21.4. Construction, Etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.
Section 21.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.
Section 21.6. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
Section 21.7. Jurisdiction and Process; Waiver of Jury Trial. (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Bonds. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
(b) The Company consents to process being served by or on behalf of any Holder of Bonds in any suit, action or proceeding of the nature referred to in Section 21.7(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 17 or at such other address of which such Holder shall then have been notified pursuant to said Section. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed to be received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
-34-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
(c) Nothing in this Section 21.7 shall affect the right of any Holder of a Bond to serve process in any manner permitted by law, or limit any right that the Holders of any of the Bonds may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Bonds or any other document executed in connection herewith or therewith.
Section 21.8. Payments Due on Non-Business Days. Anything in this Agreement or the Bonds to the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on any Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
* * * * *
-35-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.
 	 	 	
 	Very truly yours,	
 	 	 	
 	Elizabethtown Gas Company	
 	 	 	
 	By:	/s/ Brian MacLean	
 	Name: 	Brian MacLean	
 	Its:	President	
 
[Corporate Seal]
 	 	 	
Attest	
 	 	 	
By:	/s/ Ann T. Anthony	 	
Name: 	Ann T. Anthony	 	
Its:	Secretary	 	

-36-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	The Lincoln National Life Insurance Company	
 	 	 	
 	By:	Macquarie Investment Management Advisers,	
 	 	a series of Macquarie Investment Management
Business Trust, Attorney in Fact	
 	 	Fact	
 	 	 	
 	By:	/s/ Alex Alston	
 	Name: 	Alex Alston	
 	Title:	Senior Vice President	
 	 	 	
 	Lincoln National Reinsurance Company (BARBADOS) LIMITED	
 	 	 	
 	By:	Macquarie Investment Management Advisers,	
 	 	a series of Macquarie Investment Management
Business Trust,  Attorney in Fact	
 	 	 	
 	By:	/s/ Alex Alston	
 	Name: 	Alex Alston	
 	Title:	Senior Vice President	

-37-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	The Northwestern Mutual Life Insurance Company	
 	 	 	
 	By:	Northwestern Mutual Investment Management	
 	 	Company, LLC, its investment advisor	
 	 	 	
 	By:	/s/ Bradley T. Kunath	
 	Name: 	Bradley T. Kunath	
 	Title:	Managing Director	
 	 	 	
 	The Northwestern Mutual Life Insurance
COMPANY FOR ITS GROUP ANNUITY SEPARATE ACCOUNT	
 	 	 	
 	By:	/s/ Bradley T. Kunath	
 	Name:	Bradley T. Kunath	
 	Title:	Authorized Representative	

-38-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	Pacific Life Insurance Company	
 	 	 	
 	By:	/s/ Matthew A. Levene	
 	Name:	Matthew A. Levene	
 	Title:	Assistant Vice President	
 	 	 	
 	By:	/s/ Violet Osterberg	
 	Name: 	Violet Osterberg	
 	Title:	Assistant Secretary	

-39-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Teachers Insurance and Annuity Association of America	
 	 	 	
 	By:	Nuveen Alternatives Advisors LLC,	
 	 	its investment manager	
 	 	 	
 	By:	/s/ Jeffrey Hughes	
 	Name: 	Jeffrey Hughes	
 	Title:	Director	

-40-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Minnesota Life Insurance Company	
 	Catholic Financial Life	
 	Catholic United Financial	
 	 	 	
 	By:	Securian Asset Management, Inc.	
 	 	 	
 	By:	/s/ David Kuplic	
 	Name: 	David Kuplic	
 	Title:	President	

-41-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Manulife Life Insurance Company	
 	 	 	
 	By:	/s/ Akira Okada	
 	Name: 	Akira Okada	
 	Title:	Head of Investments	
 	 	 	
 	Manufacturers Life Reinsurance Limited	
 	 	 	
 	By:	/s/ Tatsuya Oshiro	
 	Name:	Tatsuya Oshiro	
 	Title:	Co-Head of Investments,	
 	 	Manulife General Account Investments	
 	 	(Singapore) Pte. Ltd.	
 	 	as investment manager of	
 	 	Manufacturers Life Reinsurance Limited	

-42-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	American United Life Insurance Company	
 	 	 	
 	By:	/s/ David Weisenburger	
 	Name: 	David Weisenburger	
 	Title:	VP, Fixed Income Securities	
 	 	 	
 	The State Life Insurance Company	
 	 	 	
 	By:	American United Life Insurance Company	
 	Its:	Agent	
 	 	 	
 	By:	/s/ David Weisenburger	
 	Name:	David Weisenburger	
 	Title:	VP, Fixed Income Securities	
 	 	 	
 	Pioneer Mutual Life Insurance Company	
 	 	 	
 	By:	American United Life Insurance Company	
 	Its:	Agent	
 	 	 	
 	By:	/s/ David Weisenburger	
 	Name:	David Weisenburger	
 	Title:	VP, Fixed Income Securities	
 	 	 	
 	United Farm Family Life Insurance Company	
 	 	 	
 	By:	American United Life Insurance Company	
 	Its:	Agent	
 	 	 	
 	By:	/s/ David Weisenburger	
 	Name:	David Weisenburger	
 	Title:	VP, Fixed Income Securities	

-43-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	State Farm Life Insurance Company	
 	 	 	
 	By:	/s/ Julie Hoyer	
 	Name: 	Julie Hoyer	
 	Title:	Investment Executive	
 	 	 	
 	By:	/s/ Rebekah L. Holt	
 	Name:	Rebekah L. Holt	
 	Title:	Investment Professional	
 	 	 	
 	State Farm Life and Accident Assurance Company	
 	 	 	
 	By:	/s/ Julie Hoyer	
 	Name:	Julie Hoyer	
 	Title:	Investment Executive	
 	 	 	
 	By:	/s/ Rebekah L. Holt	
 	Name:	Rebekah L. Holt	
 	Title:	Investment Professional	
 	 	 	
 	State Farm Insurance Companies Employee Retirement Trust	
 	 	 	
 	By:	/s/ Julie Hoyer	
 	Name:	Julie Hoyer	
 	Title:	Investment Executive	
 	 	 	
 	By:	/s/ Rebekah L. Holt	
 	Name:	Rebekah L. Holt	
 	Title:	Investment Professional	

-44-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Allianz Life Insurance Company of North America	
 	 	 	
 	By:	Allianz Global Investors U.S. LLC	
 	 	As the authorized signatory and investment manager	
 	 	 	
 	By:	/s/ Lawrence Halliday	
 	Name: 	Lawrence Halliday	
 	Title:	Managing Director	

-45-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	The Guardian Life Insurance Company of America	
 	 	 	
 	By:	/s/ Brian Keating	
 	Name: 	Brian Keating	
 	Title:	Managing Director	
 	 	 	
 	Berkshire Life Insurance Company of America	
 	 	 	
 	By:	/s/ Brian Keating	
 	Name:	Brian Keating	
 	Title:	Managing Director	
 	 	 	
 	The Guardian Insurance & Annuity Company, Inc.	
 	 	 	
 	By:	/s/ Brian Keating	
 	Name:	Brian Keating	
 	Title:	Managing Director	

-46-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	MONY Life Insurance Company	
 	 	 	
 	By:	/s/ Philip E. Passafiume	
 	Name: 	Philip E. Passafiume	
 	Title:	Director, Fixed Income	
 	 	 	
 	Protective Life Insurance Company	
 	 	 	
 	By:	/s/ Philip E. Passafiume	
 	Name:	Philip E. Passafiume	
 	Title:	Director, Fixed Income	

-47-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Genworth Life Insurance Company	
 	 	 	
 	By:	/s/ Stuart Stepetin	
 	Name: 	Stuart Stepetin	
 	Title:	Investment Officer	
 	 	 	
 	Genworth Life Insurance Company of New York	
 	 	 	
 	By:	/s/ Stuart Stepetin	
 	Name:	Stuart Stepetin	
 	Title:	Investment Officer	

-48-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Nationwide Life Insurance Company	
 	 	 	
 	By:	/s/ Jason M. Comisar	
 	Name: 	Jason M. Comisar	
 	Title:	Authorized Signatory	

-49-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Ameritas Life Insurance Corp.	
 	Ameritas Life Insurance Corp. of New York	
 	 	 	
 	By:	Ameritas Investment Partners Inc., as Agent	
 	 	 	
 	By:	/s/ Tina Udell	
 	Name: 	Tina Udell	
 	Title:	Vice President & Managing Director	

-50-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	AXA Equitable Life Insurance Company	
 	 	 	
 	By:	/s/ Amy Judd	
 	Name: 	Amy Judd	
 	Title:	Investment Officer	

-51-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Life Insurance Company of the Southwest	
 	 	 	
 	By:	/s/ Ken Weliczka	
 	Name: 	Ken Weliczka	
 	Title:	Head of Private Placements	
 	 	Sentinel Asset Management, Inc.	

-52-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	United of Omaha Life Insurance Company	
 	 	 	
 	By:	/s/ Justin P. Kavan	
 	Name: 	Justin P. Kavan	
 	Title:	Senior Vice President	
 	 	 	
 	Mutual of Omaha Insurance Company	
 	 	 	
 	By:	/s/ Justin P. Kavan	
 	Name:	Justin P. Kavan	
 	Title:	Senior Vice President	

-53-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Thrivent Financial for Lutherans	
 	 	 	
 	By:	/s/ Christopher Patton	
 	Name: 	Christopher Patton	
 	Title:	Managing Director	

-54-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	RGA Reinsurance Company	
 	 	 	
 	By:	/s/ Amy Gibson	
 	Name: 	Amy Gibson	
 	Title:	Vice President	

-55-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	Athene Annuity and Life Company	
 	 	 	
 	By:	Athene Asset Management LLC, its investment adviser	
 	 	 	
 	By:	/s/ Roger D. Fors	
 	Name: 	Roger D. Fors	
 	Title:	Senior Vice President, Fixed Income	
 	 	 	
 	Athene Annuity & Life Assurance Company	
 	 	 	
 	By:	Athene Asset Management LLC, its investment adviser	
 	 	 	
 	By:	/s/ Roger D. Fors	
 	Name:	Roger D. Fors	
 	Title:	Senior Vice President, Fixed Income	
 	 	 	
 	ReliaStar Life Insurance Company	
 	 	 	
 	By:	Voya Investment Management LLC, its investment adviser	
 	By:	Athene Asset Management LLC, its sub-adviser	
 	 	 	
 	By:	/s/ Roger D. Fors	
 	Name:	Roger D. Fors	
 	Title:	Senior Vice President, Fixed Income	

-56-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	American Equity Investment Life Insurance Company	
 	 	 	
 	By:	Jeffrey A. Fossell	
 	Name: 	Jeffrey A. Fossell	
 	Title:	Authorized Signatory  	

-57-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	Horace Mann Life Insurance Company	
 	 	 	
 	By:	Guggenheim Partners Investment Management,
LLC, as Advisor	
 	 	 	
 	By:	/s/ Kevin Robinson	
 	Name: 	Kevin Robinson	
 	Title:	Attorney-in-Fact	
 	 	 	
 	Wilton Reassurance Company 	
 	 	 	
 	By:	Guggenheim Partners Investment Management,
LLC, as Advisor	
 	 	 	
 	By:	/s/ Kevin Robinson	
 	Name:	Kevin Robinson	
 	Title:	Attorney-in-Fact	

-58-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above
 	 	 	
 	LifeCare Assurance Company	
 	ICI Mutual Insurance Company	
 	Guarantee Trust Life Insurance Company	
 	Best Meridian Insurance Company	
 	National Teachers Associates Life Insurance Co.	
 	National American Insurance Company	
 	Puritan Life Insurance Company of America	
 	 	 	
 	By:	Asset Allocation and Management LLC	
 	 	 	
 	By:	/s/ John Schaefer	
 	Name: 	John Schaefer	
 	Title:	CEO	

-59-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	The Standard Fire Insurance Company	
 	 	 	
 	By:	/s/ David D. Rowland	
 	Name: 	David D. Rowland	
 	Title:	Executive Vice President	

-60-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	CMFG Life Insurance Company	
 	 	 	
 	By:	MEMBERS Capital Advisors, Inc.
acting as Investment Advisor	
 	 	 	
 	By:	/s/ Jason Micks	
 	Name: 	Jason Micks	
 	Title:	Director II, Investments	

-61-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	Modern Woodmen of America	
 	 	 	
 	By:	/s/ Aaron R. Birkland	
 	Name: 	Aaron R. Birkland	
 	Title:	Portfolio Manager, Private Placements	
 	 	 	
 	By:	/s/ Christopher M. Cramer	
 	Name:	Christopher M. Cramer	
 	Title:	Manager, Fixed Income	

-62-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	Southern Farm Bureau Life Insurance Company	
 	 	 	
 	By:	/s/ David Divin	
 	Name: 	David Divin	
 	Title:	Senior Portfolio Manager	

-63-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	Standard Insurance Company	
 	 	 	
 	By:	/s/ Chris Beaulieu	
 	Name: 	Chris Beaulieu	
 	Title:	AVP, Investments	

-64-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Accepted as of the date first written above.
 	 	 	
 	MEMIC Indemnity Company	
 	 	 	
 	By:	Conning, Inc., as Investment Manager	
 	 	 	
 	By:	/s/ Samuel Otchere	
 	Name: 	Samuel Otchere	
 	Title:	Director	

-65-	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
“Affiliate” means, at any time, and with respect to any Person, (a) any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person, and (b) any other Person beneficially owning or holding, directly or indirectly, 10% or more of any class of voting or equity interests of such first Person or any Subsidiary of such first Person or any Person of which such first Person and its Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 10% or more of any class of voting or equity interests. Unless the context otherwise clearly requires, any reference to an  “Affiliate”  is a reference to an Affiliate of the Company.
“Agreement” is defined in Section 16.3.
“Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.
“Anti-Money Laundering Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.
“Blocked Person” means (a) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (c) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (a) or (b).
“Bonds” is defined in Section 1.1.
“Business Day” means for the purposes of any provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York or Folsom, New Jersey are required or authorized to be closed.
“Called Principal” is defined in Section 8.6.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
SCHEDULE B
(to Bond Purchase Agreement)

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
“Change in Control” is defined in Section 8.7(g).
“CISADA” means the Comprehensive Iran Sanctions, Accountability and Divestment Act.
“Closing” is defined in Section 3.
“Closing Date” is the date of the Closing.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.
“Collateral Filings” is defined in Section 4.11.
“Company” is defined in the first paragraph of this Agreement.
“Confidential Information” is defined in Section 20.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Controlled Entity” means (a) any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates and (b) if the Company has a parent company, such parent company and its Controlled Affiliates.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” means that rate of interest that is the greater of (i) 2% per annum above the rate of interest stated in the Bonds of such Tranche or (ii) 2% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate; provided, however, in no event with the rate of interest on a Bond, including any Default Rate, be greater than 10% per annum.
“Discounted Value” is defined in Section 8.6.
“Disclosure Documents” is defined in Section 5.3.
“Electronic Delivery” is defined in Section 7.1(a).
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to Hazardous Materials.
B-2	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with the Company under Section 414 of the Code.
“Event of Default” is defined in Section 11.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Financing Agreements” means this Agreement, the Indenture (including without limitation the First Supplement) and the Bonds.
“First Supplement” is defined in Section 1.1.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.
“Governmental Authority” means:
(a) the government of
(i) the United States of America or any State or other political subdivision thereof, or
(ii) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Hazardous Material” means any and all pollutants, toxic or hazardous wastes that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable Environmental Law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.
“Holder” is defined in the Indenture.
“Indebtedness” with respect to any Person means, at any time, without duplication,
B-3	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
(a) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);
(c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect of synthetic leases assuming such synthetic leases were accounted for as Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);
(e) all liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for such Person’s account by banks and other financial institutions (whether or not representing obligations for borrowed money);
(f) the aggregate swap termination value of all swap contracts of such Person, and
(g) any guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Indenture” is defined in Section 1.1.
“INHAM Exemption” is defined in Section 6.2(e).
“Institutional Investor” means (a) any Purchaser of a Bond, (b) any Holder of a Bond holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Bonds then outstanding, (c) any Holder of a Bond that is a bank, trust company, savings and loan association or other financial institution, a pension plan, an investment company, an insurance company, a broker or dealer, or another similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any Holder of any Bond referred to in clauses (a) through (c) above.
“Lien” is defined in the Indenture.
“Make-Whole Amount” is defined in Section 8.6.
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Elizabethtown Gas Company	Bond Purchase Agreement	
 
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole, (b) the ability of the Company to perform its obligations under this Agreement, the Bonds or the Indenture or (c) the validity or enforceability of any Financing Agreement.
“Memorandum” is defined in Section 5.3.
“Mortgaged Property” is defined in the Indenture.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA).
“NAIC” means the National Association of Insurance Commissioners or any successor thereto.
“NAIC Annual Statement” is defined in Section 6.2(a).
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.
“Original Indenture” is defined in Section 1.1.
“Parent” means South Jersey Industries, Inc.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
“Permitted Lien” is defined in the Indenture.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.
“Plan” means an “employee benefit plan” (as defined in Section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.
B-5	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“Proposed Prepayment Date” is defined in Section 8.7(b).
“PTE” is defined in Section 6.2(a).
“Public Order” means order of the Board of Public Utilities, State of New Jersey, Docket No. GF18050512, dated June 22, 2018.
“Purchaser” is defined in the first paragraph of this Agreement.
“QPAM Exemption” is defined in Section 6.2(d).
“Reinvestment Yield” is defined in Section 8.6.
“Related Fund” means, with respect to any Holder of any Bond, any fund or entity that (a) invests in securities or bank loans, and (b) is advised or managed by such Holder, the same investment advisor as such Holder or by an Affiliate of such Holder or such investment advisor.
“Remaining Average Life” is defined in Section 8.6.
“Remaining Scheduled Payments” is defined in Section 8.6.
“Required Holders” means, at any time, the Holders of more than 50% in principal amount of the Bonds at the time outstanding (exclusive of Bonds then owned by the Company or any of its Affiliates).
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement.
“SEC” means the Securities and Exchange Commission of the United States, or any successor thereto.
“Securities” is defined in the Indenture.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
B-6	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
“Senior Financial Officer” means the principal financial officer or the treasurer of the Company.
“Series 2018A Bonds” is defined in Section 1.
“Series 2018A-1 Bonds” is defined in Section 1.
“Series 2018A-2 Bonds” is defined in Section 1.
“Series 2018A-3 Bonds” is defined in Section 1.
“Series 2018A-4 Bonds” is defined in Section 1.
“Series 2018A-5 Bonds” is defined in Section 1.
“Settlement Date” is defined in Section 8.6.
“Source” is defined in Section 6.2.
“State Sanctions List” means a list that is adopted by any state Governmental Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.
“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.
“Tranche” means the Series 2018A-1 Bonds, the Series 2018A-2 Bonds, the Series 2018A-3 Bonds, the Series 2018A-4 Bonds, or the Series 2018A-5 Bonds, as the context requires.
“Trustee” is defined in Section 1.1.
“UCC” means, the Uniform Commercial Code as enacted and in effect from time to time in the state whose laws are treated as applying to the Mortgaged Property.
B-7	

 	
Elizabethtown Gas Company	Bond Purchase Agreement	
 
“UCC Financing Statements” shall mean any financing statements required or permitted to be filed in accordance with the UCC.
“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“U.S. Economic Sanctions Laws” means those laws, executive orders, enabling legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act, each as amended from time to time, and any other OFAC Sanctions Program.
B-8