Document/Exhibit Description Pages Size
1: 10-K Annual Report 60 330K
2: EX-4 Exhibit 4.1 29 86K
3: EX-4 Exhibit 4.2 34 102K
4: EX-11 Statement re: Computation of Earnings Per Share 1 6K
5: EX-21 Subsidiaries of the Registrant 1 9K
6: EX-23 Exhibit 23.1 1 7K
7: EX-31 Exhibit 31.1 2± 10K
8: EX-31 Exhibit 31.2 2± 10K
9: EX-32 Certification per Sarbanes-Oxley Act (Section 906) 1 7K
Exhibit 4.1
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ARTESIAN WATER COMPANY, INC.
TO
WILMINGTON TRUST COMPANY,
As Trustee
---------------------
SEVENTEENTH SUPPLEMENTAL INDENTURE
Dated as of December 1, 2003
---------------------
Supplemental to Indenture of Mortgage
Dated as of July 1, 1961,
As Supplemented and Amended
$15,400,000 First Mortgage Bonds, Series Q, 4.75%
SEVENTEENTH SUPPLEMENTAL INDENTURE, dated as of December 1, 2003, made
by and between ARTESIAN WATER COMPANY, INC. (successor to Artesian Resources
Corporation, formerly named "Artesian Water Company", under the Original
Indenture hereinafter referred to), a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Company"), party of
the first part, and WILMINGTON TRUST COMPANY, a corporation organized and
existing under the laws of the State of Delaware, having its principal office
and place of business at Tenth and Market Streets, in the City of Wilmington,
Delaware, as Trustee under the Original Indenture hereinafter referred to
(hereinafter called the "Trustee"), party of the second part.
WHEREAS, the Company is a wholly-owned subsidiary of ARTESIAN RESOURCES
CORPORATION (its name having been changed from "Artesian Water Company"), a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Corporation"); and
WHEREAS, the Corporation has heretofore executed and delivered to the
Trustee an Indenture of Mortgage (hereinafter called the "Original Indenture")
dated as of July 1, 1961, and duly recorded the Original Indenture in the
Recorder's Office at Wilmington, in Mortgage Record A Volume 56, Page 1 etc., on
the 13th day of November, A.D. 1961, for the purpose of securing First Mortgage
Bonds of the Corporation to be issued from time to time in one or more series as
therein provided; and
WHEREAS, there have been issued under the Original Indenture $1,600,000
principal amount of First Mortgage Bonds, Series A, 4 1/2%, all of which were
paid at maturity on November 1, 1978; and
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WHEREAS, there have been issued under the Original Indenture $1,000,000
principal amount of First Mortgage Bonds, Series B, 5 3/8%, the $912,750
remaining outstanding principal amount of which was paid at maturity on July 1,
1986; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a first supplemental indenture dated as of April 15, 1964
(hereinafter sometimes referred to as the "First Supplemental Indenture"),
$1,250,000 principal amount of First Mortgage Bonds, Series C, 5 1/8%, the
$1,225,000 remaining outstanding principal amount of which was paid at maturity
on April 15, 1989; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a second supplemental indenture dated as of June 1, 1970
(hereinafter sometimes referred to as the "Second Supplemental Indenture"),
$1,000,000 principal amount of First Mortgage Bonds, Series D, 9 3/4%, the
$640,000 remaining outstanding principal amount of which was paid at maturity on
June 1, 1990; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a third supplemental indenture dated as of January 1, 1973
(hereinafter sometimes referred to as the "Third Supplemental Indenture"),
$800,000 principal amount of First Mortgage Bonds, Series E, 8 1/2%, due January
1, 1998, all of which were redeemed on February 1, 1993; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a fourth supplemental indenture dated as of November 1, 1975
(hereinafter sometimes referred to as the "Fourth Supplemental Indenture"),
$1,500,000 principal amount of First Mortgage Bonds, Series F, 10 7/8%, due
November 1, 1995, the $225,000 remaining outstanding principal amount of which
was redeemed on February 1, 1993; and
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WHEREAS, there have been issued under the Original Indenture, as
supplemented by a fifth supplemental indenture dated as of March 1, 1977
(hereinafter sometimes referred to as the "Fifth Supplemental Indenture"),
$1,800,000 principal amount of First Mortgage Bonds, Series G, 8 7/8% due March
1, 1997, the $1,080,000 remaining outstanding principal amount of which was
redeemed on February 1, 1993; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a sixth supplemental indenture dated as of December 1, 1978
(hereinafter sometimes referred to as the "Sixth Supplemental Indenture"),
$1,800,000 principal amount of First Mortgage Bonds, Series H, 9 3/4%, due
December 1, 1998, the $1,260,000 remaining outstanding principal amount of which
was redeemed on February 1, 1993; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a seventh supplemental indenture dated as of November 1, 1981
(hereinafter sometimes referred to as the "Seventh Supplemental Indenture"),
$3,000,000 principal amount of First Mortgage Bonds, Series I, 11 7/8%, due
October 1, 1987, all of which were redeemed on October 1, 1986; and
WHEREAS, the Company was organized for stated purposes that encompass
the stated purposes of the Corporation in order that the Company could acquire
from the Corporation substantially all of the Mortgaged Property (as such term
is defined in the Original Indenture) as an entirety and to operate the same;
and
WHEREAS, the Corporation, the Company and the Trustee entered into an
eighth supplemental indenture dated as of July 1, 1984 (hereinafter sometimes
referred to as the "Original Eighth Supplemental Indenture"), providing for the
succession and substitution of the Company to and for the Corporation with the
same effect as if the Company had been named in
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the Original Indenture as the mortgagor, and providing for the assumption by the
Company of, and the release and discharge of the Corporation from, all liability
and obligation on and with respect to the Bonds and coupons issued under the
Original Indenture and all the terms, covenants and conditions of the Original
Indenture; and
WHEREAS, the Corporation, the Company and the Trustee executed a
certain corrected eighth supplemental indenture dated as of July 1, 1984
(hereinafter sometimes referred to as the "Corrected Eighth Supplemental
Indenture") which supplements and corrects certain descriptions of Mortgaged
Property set forth in the Original Indenture (the Original Eighth Supplemental
Indenture and the Corrected Eighth Supplemental Indenture being hereinafter
sometimes referred to collectively as the "Eighth Supplemental Indenture"); and
WHEREAS, on July 1, 1984, the Corporation conveyed and transferred
substantially all the Mortgaged Property as an entirety, subject to the lien of
the Original Indenture and all supplemental indentures thereto, to the Company;
and
WHEREAS, the Company has assumed and agreed that it will promptly pay
or cause to be paid, the principal of and any premium that may be due and
payable on and the interest on all the Bonds issued under the Original Indenture
and all indentures supplemental thereto, and has agreed to perform, observe and
fulfill, duly and punctually, all the terms, covenants and conditions of the
Original Indenture and all indentures supplemental thereto stated therein to be
performed, observed or fulfilled by the Corporation, and the Corporation has
been released and discharged from all liability and obligation on and with
respect to the Bonds and coupons issued under the Original Indenture and all
terms, covenants and conditions of the Original Indenture and the Trustee has
executed and delivered to the Company an instrument of partial defeasance dated
April 4, 1986 pursuant to Article II of the Eighth Supplemental Indenture; and
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WHEREAS, there have been issued under the Original Indenture, as
supplemented by a ninth supplemental indenture dated as of December 1, 1986
(hereinafter sometimes referred to as the "Ninth Supplemental Indenture"),
$5,000,000 principal amount of First Mortgage Bonds, Series J, 9.55%, all of
which were paid at maturity on December 1, 1996; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a tenth supplemental indenture dated as of April 1, 1989
(hereinafter sometimes referred to as the "Tenth Supplemental Indenture"),
$7,000,000 principal amount of First Mortgage Bonds, Series K, 10.17%, due April
1, 2009, all of which were redeemed on December 29, 2000; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a eleventh supplemental indenture dated as of February 1, 1993
(hereinafter sometimes referred to as the "Eleventh Supplemental Indenture"),
$10,000,000 principal amount of First Mortgage Bonds, Series L, 8.03%, all of
which were paid at maturity on February 1, 2003; and
WHEREAS, the Original Indenture has been further supplemented pursuant
to a twelfth supplemental indenture dated as of December 5, 1995 (hereinafter
sometimes referred to as the "Twelfth Supplemental Indenture"), which provided
for the release from the Indenture of certain assets of the Company; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a thirteenth supplemental indenture dated as of June 1, 1997
(hereinafter sometimes referred to as the "Thirteenth Supplemental Indenture"),
$10,000,000 principal amount of First Mortgage Bonds, Series M, 7.84%, due
December 31, 2007, all of which were outstanding as of the date hereof; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a Fourteenth Supplemental Indenture dated as of June 1, 1997
(hereinafter sometimes referred to
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as the "Fourteenth Supplemental Indenture"), $5,000,000 principal amount of
First Mortgage Bonds, Series N, due December 31, 2007, all of which were
outstanding as of the date hereof; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a Fifteenth Supplemental Indenture dated as of December 1, 2000
(hereinafter sometimes referred to as the "Fifteenth Supplemental Indenture"),
$20,000,000 principal amount of First Mortgage Bonds, Series 0, 8.17%; and
WHEREAS, there have been issued under the Original Indenture, as
supplemented by a sixteenth supplemental indenture dated as of January 31, 2003
(hereinafter sometimes referred to as the "Sixteenth Supplemental Indenture"),
$25,000,000 principal amount of First Mortgage Bonds, Series P, 6.58%, all of
which were outstanding as of the date hereof; and
WHEREAS, the Company proposes to issue and sell not more than
$15,400,000 principal amount of a new series of bonds to be designated as First
Mortgage Bonds, Series Q, 4.75% to be issued under and secured by the Original
Indenture as supplemented by this seventeenth indenture dated as of December 1,
2003 (hereinafter sometimes referred to as the "Seventeenth Supplemental
Indenture").
WHEREAS, the Company, pursuant to the provisions of the Original
Indenture, has duly resolved and determined to make, execute and deliver to the
Trustee this Seventeenth Supplemental Indenture for the purpose of providing for
the creation of the First Mortgage Bonds, Series Q, 4.75% to be issued under and
secured by the Original Indenture, as supplemented (the Original Indenture, the
First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental
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Indenture, the Eight Supplemental Indenture, the Ninth Supplemental Indenture,
the Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the
Twelfth Supplemental Indenture, the Thirteenth Supplemental Indenture, the
Fourteenth Supplemental Indenture, the Fifteenth Supplemental Indenture, the
Sixteenth Supplemental Indenture, this Seventeenth Supplemental Indenture and
all indentures supplemental to the Original Indenture hereafter executed, being
hereinafter sometimes called the "Indenture"); and
WHEREAS, the Bonds authorized by this Seventeenth Supplemental
Indenture will all be issued to Wilmington Trust Company (the "Authority Bonds
Indenture Trustee"), as trustee under a Trust Indenture dated as of December 1,
2003, between the Authority Bonds Indenture Trustee and The Delaware Economic
Development Authority, a body corporate and politic constituted as an
instrumentality of the State of Delaware created by 29 Del. C. Chapter 50 as
amended (the "Authority") and will be held as security for holders of
$15,400,000 aggregate principal amount of Water Facilities Revenue Bonds, Series
2003 (Artesian Water Company, Inc. Project) to be issued by the Authority (the
"Authority Bonds"); and
WHEREAS, all things necessary to make $15,400,000 aggregate principal
amount of the First Mortgage Bonds, Series Q, 4.75% when duly executed by the
Company and authenticated and delivered by the Trustee, legally valid and
binding obligations of the Company entitled to the benefits and security of the
Indenture, and to make this Seventeenth Supplemental Indenture a legally valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, have been done and performed; and
WHEREAS, the issuance of the First Mortgage Bonds, Series Q, 4.75%, as
herein provided, has been in all respects duly authorized by the Company as
provided in the Indenture.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH THAT ARTESIAN WATER COMPANY,
INC., in consideration of the premises and of the acceptance by the Trustee of
the trusts hereby created and of the purchase and acceptance of the First
Mortgage Bonds, Series Q, 4.75% by the Authority Bonds Indenture Trustee and of
One Dollar to the Company duly paid by the Trustee at or before the ensealing
and delivery of these presents, for itself and its successors, intending to be
legally bound hereby, does hereby ratify and confirm its mortgage and pledge to
the Trustee of all property described in the Original Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Eighth Supplemental Indenture, the Thirteenth
Supplemental Indenture, the Fifteenth Supplemental Indenture and the Sixteenth
Supplemental Indenture (except such thereof as may heretofore have been released
from the lien of the Indenture in accordance with the terms thereof) and has
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents does grant, bargain,
sell, release, convey, assign, transfer, mortgage, pledge, set over and confirm,
unto Wilmington Trust Company, as Trustee, and to its successors in the trust,
and their and each of their assigns forever, all and singular the pieces or
parcels of land described on Exhibit A attached hereto;
TOGETHER with all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property
and rights or any part thereof, with the reversion and reversions, remainder and
remainders, and to the extent permitted by law, all tolls, rents, revenues,
issues, income, product and profits thereof, and all the estate, right, title,
interest and claim whatsoever, at law as well as in equity, that the Company now
has or may
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hereafter acquire in and to the aforesaid premises, property and rights and
every part and parcel thereof;
SAVING AND EXCEPTING, HOWEVER, from the property hereby mortgaged and
pledged all of the property of every kind and type saved and excepted from the
Original Indenture, by the terms thereof;
SUBJECT, HOWEVER, to the exceptions, reservations and matters of the
kind and type recited in the Original Indenture;
TO HAVE AND TO HOLD all said premises, property and rights granted,
bargained, sold, released, conveyed, transferred, assigned, mortgaged, pledged,
set over and confirmed by the Company as aforesaid or intended so to be unto the
Trustee and its successors in the trust and their assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts set forth in the
Original Indenture for the equal and proportionate benefit and security of those
who shall hold or own the bonds and coupons issued and to be issued under the
Indenture, or any of them, without preference of any of said bonds and coupons
over any others thereof by reason of priority in the time of the issue or
negotiation thereof or by reason of the date or maturity thereof, or for any
other reason whatsoever; subject, however, to the provisions with respect to
extended, pledged and transferred coupons contained in Section 4.02 of the
Original Indenture.
AND THIS INDENTURE FURTHER WITNESSETH THAT, in consideration of the
premises and of such acceptance or purchase of the First Mortgage Bonds, Series
Q, 4.75% by the Authority Bonds Indenture Trustee, and of said sum of One Dollar
to the Company duly paid by the Trustee at or before the ensealing and delivery
of these presents, the Company, for itself and its successors, intending to be
legally bound does hereby covenant to and agree with the
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Trustee and its successors in the trust, for the benefit of those who shall hold
or own such Bonds, or any of them, as follows:
ARTICLE I
FIRST MORTGAGE BONDS, SERIES Q, 4.75%
Section 1.1 Designation and Amount.
A series of Bonds to be issued under the Original Indenture as
heretofore supplemented and as supplemented hereby and secured thereby and
hereby is hereby created which shall be designated as, and shall be
distinguished from the Bonds of all other series by the title, "First Mortgage
Bonds, Series Q, 4.75%," herein referred to as the "Bonds of Series Q." The
aggregate principal amount of the Bonds of Series Q shall not exceed
$15,400,000.
Section 1.2 Bond Terms. The Bonds of Series Q shall be dated the date
of their authentication and shall bear interest from such date, except as
otherwise provided for Bonds issued upon subsequent exchanges and transfers by
Section 2.06 of the Original Indenture, shall mature and be due on December 1,
2043 (the "Maturity Date"), and shall bear interest at 4.75% per annum, payable
semiannually on the first Business Day (as hereinafter defined) of January and
July of each year, beginning with the first Business Day of July, 2004, and on
the Maturity Date, until the Company's obligation with respect to the payment of
principal, premium (if any) and interest shall be discharged. For purposes of
this Section 1.2, and any other definition of the term contained in the
Indenture, Business Day shall mean a day on which banks located in Wilmington,
Delaware and in the city in which the office of the Authority Bonds Indenture
Trustee responsible for payment of the Authority Bond are not required or
authorized to remain closed.
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The Bonds of Series Q shall be issuable as registered bonds without
coupons in the denominations of Five Hundred Thousand Dollars ($500,000) and any
multiple thereof, numbered QR-l and upwards.
Unless otherwise agreed to in writing by the Company and the Authority
Bonds Indenture Trustee, the payment of the principal of, premium (if any) and
interest on, the Bonds of Series Q shall be made as provided in the Trust
Indenture (the "Authority Bonds Indenture") by and between the Authority and the
Authority Bonds Indenture Trustee, dated as of December 1, 2003 securing the
Authority Bonds.
The Bonds of Series Q shall be redeemable as provided in the Original
Indenture and the Authority Bonds Indenture.
Section 1.3 Form of Bond.
The text of the registered Bonds of Series Q and of the authentication
certificate of the Trustee upon said Bonds shall be, respectively, substantially
as follows:
FORM OF REGISTERED BOND OF SERIES Q WITHOUT COUPONS
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OTHERWISE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS
REGISTERED PURSUANT TO THE PROVISIONS OF SAID SECURITIES ACT OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
No. QR-1 $15,400,000
ARTESIAN WATER COMPANY, INC.
FIRST MORTGAGE BONDS, SERIES Q, 4.75%
Due December 1, 2043
ARTESIAN WATER COMPANY, INC., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company", which
term shall include any
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successor corporation as defined in the Original Indenture hereinafter referred
to), for value received, hereby promises to pay to Wilmington Trust Company (the
"Authority Bonds Trustee"), as Trustee under the Trust Indenture dated as of
December 1, 2003 of the Delaware Economic Development Authority (the
"Authority") or registered assigns, on December 1, 2043 (the "Maturity Date"),
the sum of $15,400,000 in coin or currency of the United States of America that
at the time of payment is legal tender for the payment of public and private
debts, and to pay in like coin or currency interest thereon to the registered
owner hereof, from the date hereof, at a rate equal to 4.75% per annum, payable
on the first Business Day of January and July of each year, beginning with the
first Business Day of July, 2004, and on the Maturity Date, until the Company's
obligation with respect to the payment of such principal, premium (if any) and
interest shall be discharged. Unless otherwise agreed to in writing by the
Company and the Authority Bond Trustee, payments of principal, premium (if any)
and interest are to be made at the principal office of the Authority Bond
Trustee in the City of Wilmington, Delaware.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds (herein called the "Bonds"), not limited in
aggregate principal amount except as provided in the Original Indenture
hereinafter mentioned, all issued and to be issued in one or more series under
and equally secured by an Indenture of Mortgage dated as of July 1, 1961 (herein
called the "Original Indenture"), executed by Artesian Resources Corporation
(then named Artesian Water Company), a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Corporation") and by
Wilmington Trust Company, as trustee (herein called the "Trustee"). The Original
Indenture has heretofore been supplemented by seventeen supplemental indentures,
including an eighth supplemental indenture dated as of July 1, 1984, pursuant to
which the Company assumed all of the obligations of the Corporation
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under the Original Indenture, and by a seventeenth supplemental indenture dated
as of December 1, 2003 (hereinafter called the "Seventeenth Supplemental
Indenture"). Reference is hereby made to the Original Indenture as so
supplemented for a description of the property mortgaged and pledged, the nature
and extent of the security, the terms and conditions upon which the Bonds are
and are to be issued and secured and the rights of the holders or registered
owners thereof and of the Trustee in respect of such security. As provided in
the Original Indenture, the Bonds may be issued in one or more series for
various principal sums, may bear different dates and mature at different times,
may bear interest at different rates and may otherwise vary as provided or
permitted in the Original Indenture, as supplemented. This Bond is one of the
Bonds described in the Seventeenth Supplemental Indenture and designated therein
as "First Mortgage Bonds, Series Q, 4.75%" (hereinafter called the "Bonds of
Series Q"). To the extent permitted by, and as provided in, the Original
Indenture or any indenture supplemental thereto, modifications or alterations of
the Original Indenture, or of an indenture supplemental thereto, and of the
rights and obligations of the Company and of the rights of the holders of the
Bonds issued and to be issued thereunder, may be made with the consent of the
Company by an affirmative vote of the holders of not less than sixty-six and
two-thirds per cent (66 2/3%) in aggregate principal amount of the Bonds then
outstanding under the Original Indenture and entitled to vote upon and affected
by such modification or alteration, at a meeting of bondholders called and held
as provided in the Original Indenture, and, in case one or more but less than
all of the series of the Bonds then outstanding under the Original Indenture and
entitled to vote would be affected by the modification or alteration differently
from or without affecting the Bonds of any of the other series, by an
affirmative vote of the holders of not less than sixty-six and two-thirds per
cent (66 2/3%) in aggregate principal amount of the Bonds of each series so
affected,
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or in either case by the written consent of the holders of such percentages of
Bonds; provided, however, that no such modification or alteration may be made
that would extend the maturity of, or reduce the principal amount of, or reduce
the rate of, or extend the time of payment of interest on, or reduce any premium
payable upon any redemption of, this Bond, or modify the terms of payment of
principal or interest, or reduce the percentage required for the taking of any
such action, without the express consent of the holder hereof.
No reference herein to the Original Indenture or to any indenture
supplemental thereto and no provision of this Bond or of the Original Indenture
or of any indenture supplemental thereto shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium (if any) and interest on this Bond at the time and place and at the rate
and in the coin or currency herein prescribed.
The Bonds of Series Q shall be redeemable as provided in the Original
Indenture and the Seventeenth Supplemental Indenture.
The principal of the Bonds of Series Q may be declared or may become
due prior to the Maturity Date, in the manner and with the effect and subject to
the conditions provided in the Original Indenture and the Seventeenth
Supplemental Indenture.
This Bond is transferable by the registered owner hereof, in person or
by duly authorized attorney, on books of the Company to be kept for that purpose
at the principal office of the Trustee in the City of Wilmington, Delaware, or,
if there be a successor trustee, at its principal office, upon surrender hereof
at such office for cancellation and upon presentation of a written instrument of
transfer duly executed, and thereupon the Company shall issue in the name of the
transferee or transferees, and the Trustee shall authenticate and deliver, a new
registered Bond or Bonds of Series Q, in an authorized denomination or
denominations, of a like aggregate principal
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amount; and the registered owner of any registered Bond or Bonds of Series Q may
surrender the same as aforesaid at said office in exchange for a like aggregate
principal amount of Bonds of like form of other authorized denominations, all
upon payment of the charges and subject to the terms and conditions specified in
the Original Indenture.
The Company and the Trustee may deem and treat the person in whose name
this Bond shall at the time be registered on the books of the Company as the
absolute owner hereof for all purposes whatsoever (except as otherwise provided
in Article XIV of the Original Indenture with respect to bondholders' meetings
and consents); and payment of or on account of the principal of, premium (if
any) and interest on this Bond shall be made only to or upon the order in
writing of such registered owner hereof; and all such payments shall be valid
and effectual to satisfy and discharge the liability upon this Bond to the
extent of the sum or sums so paid.
No recourse under or upon any obligation, covenant or agreement
contained in the Original Indenture or in any indenture supplemental thereto, or
in any Bond thereby secured, or because of any indebtedness thereby secured,
shall be had against any incorporator or against any past, present or future
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation
under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise; it being
expressly agreed and understood that the Original Indenture, any indenture
supplemental thereto and the obligations thereby secured, are solely corporate
obligations, and that no personal liability whatever shall attach to, or be
incurred by, any incorporators, stockholders, officers or directors, as such, of
the Company or any successor corporation or any of them, because of the
incurring of the indebtedness thereby authorized, or under or by reason of any
of the obligations, covenants or agreements, expressed
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or implied, contained in the Original Indenture or in any indenture supplemental
thereto or in any of the Bonds thereby secured.
This Bond shall not be entitled to any benefit under the Original
Indenture or any indenture supplemental thereto, and shall not become valid or
obligatory for any purpose until Wilmington Trust Company, as Trustee under the
Indenture, or a successor trustee thereunder, shall have signed the form of
authentication certificate endorsed hereon.
(Signatures follow on next page.)
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IN WITNESS WHEREOF, ARTESIAN WATER COMPANY, INC., has caused this Bond
to be signed in its name by its President or a Vice President and its corporate
seal (or a facsimile thereof) to be hereto affixed and attested by its Secretary
or an Assistant Secretary, and this Bond to be dated December 1, 2003.
ARTESIAN WATER COMPANY, INC.
By:____________________________
Vice President
Attest:
_____________________________
Secretary
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FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE
FOR BONDS OF SERIES Q
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Bond is one of the Bonds, of the series designated therein,
described in the within-mentioned Original Indenture, as supplemented.
WILMINGTON TRUST COMPANY, as Trustee,
By:__________________________________
Authorized Officer
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ARTICLE II
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees that, without the prior written
consent of the holders of not less than sixty-six and two-thirds percent (66
2/3%) in principal amount of the Bonds of Series Q then outstanding, so long as
any of the Bonds of Series Q are outstanding:
Section 2.1 Series Q Dividend Restriction.
No dividends or other distributions of cash or other assets shall be declared or
paid, directly or indirectly, on any shares of common stock of the Company, nor
shall any shares of common stock of the Company be purchased, redeemed, retired,
or otherwise acquired by the Company, if immediately after such declaration,
payment, retirement, redemption or acquisition, the aggregate capital of the
Company and its subsidiaries, on a consolidated basis, attributable to its
common stock, surplus and retained earnings would be less than $48,000,000. In
determining the aggregate consolidated capital of the Company and its
subsidiaries attributable to its common stock, its surplus, and its retained
earnings for the purpose of this Section 2.1, any write-up of assets, or
write-down or write-off of the excess over original cost of property made on the
books of the Company subsequent to December 31, 2002 shall be disregarded.
Section 2.2 Restrictions on Funded Indebtedness. The Company shall not
incur, assume, guarantee or in any other manner become liable, with respect to
any "Funded Indebtedness" (as hereinafter defined) or permit any subsidiary to
incur any Funded Indebtedness, if immediately thereafter, the total amount of
Funded Indebtedness then outstanding, would exceed sixty-six and two-thirds per
cent (66 2/3%) of the "Total Permanent Capital" (as hereinafter defined) of the
Company and its consolidated subsidiaries.
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Funded Indebtedness shall mean all bonds, debentures and other evidence
of indebtedness of the Company and its subsidiaries, secured or unsecured, for
money borrowed, but excluding (i) indebtedness maturing on demand or within one
year from the date incurred and not renewable or extendable at the option of the
debtor, (ii) indebtedness of the Company to any subsidiary and any indebtedness
of a subsidiary to the Company, and (iii) indebtedness that has been called for
redemption and for the payment of which monies have been irrevocably deposited
with a trustee. Funded Indebtedness shall include the portion of bonds, notes or
other indebtedness maturing, or required to be redeemed, within one year from
the date as of which Funded Indebtedness is being determined.
Total Permanent Capital shall mean, with respect to the Company and its
subsidiaries: (i) the sum of the par or stated value of all outstanding capital
stock of the Company and all paid-in premiums thereon; (ii) all surplus,
including capital and earned surplus but not including surplus from any
revaluation of the Company's assets after December 31, 2002; (iii) the minority
interest (if any) in consolidated subsidiaries, but not including any earned
surplus of subsidiaries prior to the date of acquisition of such subsidiaries;
and (iv) all Funded Indebtedness of the Company and such subsidiaries.
In all other respects, Funded Indebtedness and Total Permanent Capital
shall be computed as they would be for a consolidated balance sheet of the
Company and its subsidiaries on the applicable date, excluding all intercompany
items, and in accordance with generally accepted accounting principles; provided
that for purposes of computations under this Section 2.2, capitalized lease
obligations shall be excluded from Funded Indebtedness.
Section 2.3 Restrictions on Issuance of Additional Bonds. In addition
to the circumstances under which a "Net Earnings Certificate" (as defined in the
Original Indenture) is
-20-
required to be delivered to the Trustee under the terms of Sections 3.08 or 3.09
of the Original Indenture in connection with the issuance of Bonds by the
Company pursuant to either such Section, in all other circumstances under which
the Company proposes to issue additional Bonds under either Section 3.08 or 3.09
of the Original Indenture, it shall be a requirement of such issuance and of the
authentication and delivery by the Trustee of any Bonds to be so issued that the
Trustee shall have received a Net Earnings Certificate.
Section 2.4 Transactions with Affiliates. The Company will not, and
will not permit any subsidiary to, engage in any material transaction with an
"Affiliate" (as hereinafter defined), including, without limitation, the
purchase from, sale to or exchange of property with, or the rendering of any
service by or for, any Affiliate, except upon terms that are at least as
favorable to the Company or such subsidiary in all material respects as terms
that could be obtained at the time in a comparable arms' length transaction with
a person other than an Affiliate. For purposes of this Section 2.4, an Affiliate
of any corporation shall mean any person or entity directly or indirectly
controlling, controlled by, or under direct or indirect common control with such
corporation; and a person or entity shall be deemed to control a corporation if
such person or entity possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
ARTICLE III
THE TRUSTEE
Section 3.1 Trustee Acceptance. The Trustee hereby accepts the trust
hereby declared and provided and agrees to perform the same upon the terms set
forth in the Original Indenture as further supplemented by this Seventeenth
Supplemental Indenture and upon the additional
-21-
terms and conditions that the Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Seventeenth
Supplemental Indenture or the due execution hereof by the Company or for or in
respect of the recitals contained herein, all of which recitals are made by the
Company solely.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Incorporation of Original Indenture Terms. This instrument
shall be construed as an indenture supplemental to the Original Indenture, and
shall form a part thereof. The Original Indenture as heretofore supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth
Supplemental Indenture, the Tenth Supplemental Indenture, the Eleventh
Supplemental Indenture, the Twelfth Supplemental Indenture, the Thirteenth
Supplemental Indenture, the Fourteenth Supplemental Indenture, the Fifteenth
Supplemental Indenture, the Sixteenth Supplemental Indenture, and as further
supplemented by this Seventeenth Supplemental Indenture is hereby ratified and
confirmed. Terms defined in the Original Indenture that are used herein and not
otherwise defined herein are used as defined in the Original Indenture.
Section 4.2 Counterparts. This Seventeenth Supplemental Indenture may
be simultaneously executed in any number of counterparts, each of which when so
executed shall be deemed to be an original; but such counterparts shall together
constitute but one and the same instrument.
-22-
IN WITNESS WHEREOF, ARTESIAN WATER COMPANY, INC. has caused these
presents to be signed in its corporate name by its President or one of its Vice
Presidents and sealed with its corporate seal, attested by its Secretary or one
of its Assistant Secretaries, and WILMINGTON TRUST COMPANY, as Trustee, has
caused these presents to be signed in its corporate name by one of its Vice
Presidents and sealed with its corporate seal, attested by one of its Assistant
Secretaries, all as of the day and year first above written.
ARTESIAN WATER COMPANY, INC.
By:_________________________
Vice President
[SEAL]
Attest: ___________________
(Signatures continue on next page.)
-23-
(Signatures continued from previous page.)
WILMINGTON TRUST COMPANY,
As Trustee,
By:_______________________
[SEAL]
Attest: __________________________
-24-
STATE OF DELAWARE )
) SS.:
COUNTY OF NEW CASTLE )
On this, the 22nd day of December, 2003, before me, the undersigned,
notary public, personally appeared David B. Spacht, who acknowledged himself to
be the Vice President of Artesian Water Company, Inc., a corporation organized
under the laws of the State of Delaware, and that he as such officer, being
authorized to do so, executed the foregoing Seventeenth Supplemental Indenture
for the purposes therein contained by signing the name of Artesian Water
Company, Inc. by himself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________ Notary Public
Wilmington, New Castle County
My Commission Expires
___________________________
[Seal]
-25-
STATE OF DELAWARE )
) SS.:
COUNTY OF NEW CASTLE )
On this, the 22nd day of December, 2003, before me, the undersigned,
notary public, personally appeared __________________________, who acknowledged
himself/herself to be a Vice President of Wilmington Trust Company, a
corporation organized under the laws of the State of Delaware, and that he/she
as such officer, being authorized to do so, executed the foregoing Seventeenth
Supplemental Indenture for the purposes therein contained by signing the name of
Wilmington Trust Company by himself/herself as Vice President.
I certify that I am not an officer or director of said trust company.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________, Notary Public
Wilmington, New Castle County
My Commission Expires
___________________________
[Seal]
-26-
EXHIBIT A
NEW CASTLE COUNTY
White Clay Creek Hundred
Tax Parcel No. 09-019.00-033
ALL that certain lot, piece or parcel of land situate in White Clay
Creek Hundred, New Castle County and State of Delaware and being more
particularly bounded and described in accordance with a minor subdivision plan,
property of Artesian Water Company, prepared by VanDemark & Lynch, Inc., Civil
Engineers and Surveyors, dated June 18, 1971, revised July 23, 1971 and revised
August 19, 1971 and now remaining of record in the Office for the Recording of
Deeds, at Wilmington, in and for New Castle County, in Microfilm No. 1826 and
more particularly bounded and described as follows, to wit:
BEGINNING at a point in the Northeasterly side of New Churchman Road at
eighty feet wide, said point of Beginning being measured by the four following
courses and distances from a point in the center of Churchman Bridge over the
Christina Creek; (1) running along the old center line of Churchman Road North
fifty-two degrees forty-three minutes, twenty seconds West four hundred
thirty-two feet and fifty-three one-hundredths of a foot; (2) still along said
center line, North sixty-four degrees, thirty-six minutes, twenty seconds West,
thirteen hundred forty feet and twenty-four one-hundredths of a foot to a point;
(3) still along said old center line, North eighty-seven degrees, forty-six
minutes, twenty seconds West, one hundred feet to a point; (4) thence leaving
the old center line of Churchman Road and at right angles thereto North two
degrees, thirteen minutes, forty seconds East, twenty-eight feet and forty-two
one-hundredths of a foot to a point on the Northeasterly side of said road, this
being said place of Beginning; thence from said point of Beginning along line of
land now or formerly of Forbes, North two degrees, thirteen minutes, forty
seconds East, two hundred eleven feet and seventy-two one-hundredths of a foot
to a point; and thence South eighty-seven degrees, forty-six minutes and twenty
seconds East, one hundred feet to a point and thence North two degrees, thirteen
minutes, six seconds East, two hundred ninety-eight feet and eighty-eight
one-hundredths of a foot to a point in line of lands of Artesian Water Company;
and thence thereby North sixty-one degrees, forty-six minutes, forty-two seconds
East, four hundred twenty-five feet to a point; and thence still along line of
other lands of Artesian Water Company, the following five courses and distances:
(1) North sixty-eight degrees, three minutes, thirty seconds East, one hundred
ninety-six feet and seventy-four one-hundredths of a foot to a point; and thence
(2) South thirty degrees, six minutes, twenty seconds East, one hundred
ninety-five feet and fifty-nine one-hundredths of a foot to a point; and thence
(3) South nine degrees, fifty-three minutes forty seconds West, one hundred
thirty-five feet to a point; and thence (4) South forty degrees, six minutes,
twenty seconds East, four hundred forty-five feet to a point; and thence (5)
South twenty-five degrees, twenty-three minutes, forty seconds West, two hundred
thirty-five feet to a point; and thence along line of lands of Realty Company,
Dillman, Garber, Goad, Gray and Shaw, North sixty-four degrees, thirty-six
minutes, twenty seconds West seven hundred fifty feet to a point; and thence
along line of lands of Franklin B. Shaw, South twenty-five degrees, twenty-three
minutes, forty seconds West, three hundred five feet and forty-four
one-hundredths
-1-
of a foot to a point in the aforesaid Northeasterly side of New Churchman Road;
and thence by the same on a curve to the left with a radius of thirteen hundred
thirteen feet and twenty-four one-hundredths of a foot a distance of one hundred
thirty-two feet and ten one-hundredths of a foot to the first mentioned point
and place of Beginning. Containing within said metes and bounds 10.52 acres of
land more or less.
-2-
Dates Referenced Herein and Documents Incorporated by Reference
4 Subsequent Filings that Reference this Filing
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