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MORTGAGE
NEW JERSEY NATURAL GAS COMPANY
To
BNY MIDWEST TRUST COMPANY,
As Trustee
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THIRTIETH SUPPLEMENTAL INDENTURE
Dated as of December 1, 2003
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Supplemental to Indenture of Mortgage and
Deed of Trust Dated April 1, 1952
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Prepared by: Xxxxxxx X. Xxxxx
Xxxxxxx and Xxxxxx LLP
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
MORTGAGE
THIRTIETH SUPPLEMENTAL INDENTURE, dated as of December 1, 2003, between
NEW JERSEY NATURAL GAS COMPANY, a corporation organized and existing under the
laws of the State of New Jersey (hereinafter called the "Company"), having its
principal office at 0000 Xxxxxxx Xxxx, Xxxx, Xxx Xxxxxx, party of the first
part, and BNY MIDWEST TRUST COMPANY, a trust company organized and existing
under the laws of the State of Illinois (hereinafter called the "Trustee"),
having its principal office at 0 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, as
Trustee under the Indenture of Mortgage and Deed of Trust hereinafter mentioned,
party of the second part.
WHEREAS, the Company has heretofore executed and delivered to the
Trustee its Indenture of Mortgage and Deed of Trust dated April 1, 1952
(hereinafter sometimes called the "Original Indenture") to secure the payment of
the principal of and the interest and premium (if any) on all Bonds at any time
issued and outstanding thereunder, and to declare the terms and conditions upon
which Bonds are to be issued thereunder; and
WHEREAS, the Company thereafter executed and delivered to the Trustee
its First Supplemental Indenture dated February 1, 1958, its Second Supplemental
Indenture dated December 1, 1960, its Third Supplemental Indenture dated July 1,
1962, its Fourth Supplemental Indenture dated September 1, 1962, its Fifth
Supplemental Indenture dated December 1, 1963, its Sixth Supplemental Indenture
dated June 1, 1966, its Seventh Supplemental Indenture dated October 1, 1970,
its Eighth Supplemental Indenture dated May 1, 1975, its Ninth Supplemental
Indenture dated February 1, 1977, its Tenth Supplemental Indenture dated as of
September 1, 1980, its Eleventh Supplemental Indenture dated as of September 1,
1983, its Twelfth Supplemental Indenture dated as of August 1, 1984, its
Thirteenth Supplemental Indenture dated as of September 1, 1985, its Fourteenth
Supplemental Indenture dated as of May 1, 1986, its Fifteenth Supplemental
Indenture dated as of March 1, 1987, its Sixteenth Supplemental Indenture dated
as of December 1, 1987, its Seventeenth Supplemental Indenture dated as of June
1, 1988, its Eighteenth Supplemental Indenture dated as of June 1, 1989, its
Nineteenth Supplemental Indenture dated as of March 1, 1991, its Twentieth
Supplemental Indenture dated as of December 1, 1992, its Twenty-First
Supplemental Indenture dated as of August 1, 1993, its Twenty-Second
Supplemental Indenture dated as of October 1, 1993, its Twenty-Third
Supplemental Indenture dated as of August 15, 1994, its Twenty-Fourth
Supplemental Indenture dated as of October 1, 1994, its Twenty-Fifth
Supplemental Indenture dated as of July 15, 1995, its Twenty-Sixth Supplemental
Indenture dated as of October 1, 1995, its Twenty-Seventh Supplemental Indenture
dated as of September 1, 1997, its Twenty-Eighth Supplemental Indenture dated as
of January 1, 1998 and its Twenty-Ninth Supplemental Indenture dated as of April
1, 1998, supplementing and amending the Original Indenture; and
WHEREAS, Bonds in the aggregate principal amount of Twelve Million Five
Hundred Thousand Dollars ($12,500,000) were issued under and in accordance with
the terms of the Original Indenture, as an initial series designated "First
Mortgage Bonds, 4-1/4% Series A due 1977," herein sometimes called "1977 Series
A Bonds," which 1977 Series A Bonds have since been paid and redeemed by the
Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Two
Million Two Hundred Fifty Thousand Dollars ($2,250,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First Supplemental Indenture, as a second series designated "First
Mortgage Bonds, 5% Series B due 1983", herein sometimes called "1983 Series B
Bonds", which 1983 Series B Bonds have since been paid and redeemed by the
Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Four
Million Dollars ($4,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First Supplemental
Indenture and the Second Supplemental Indenture, as a third series designated
"First Mortgage Bonds, 5-1/8% Series C due 1985," herein sometimes called "1985
Series C Bonds," which 1985 Series C Bonds have since been paid and redeemed by
the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Five
Million Dollars ($5,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Fourth Supplemental Indentures, inclusive, as a fourth series designated "First
Mortgage Bonds, 4-7/8% Series D due 1987," herein sometimes called "1987 Series
D Bonds," which 1987 Series D Bonds have since been paid and redeemed by the
Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Four
Million Five Hundred Thousand Dollars ($4,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Fifth Supplemental Indentures, inclusive, as a fifth
series designated "First Mortgage Bonds, 4-3/4% Series E due 1988," herein
sometimes called "1988 Series E Bonds," which 1988 Series E Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Seventh Supplemental Indentures, inclusive, as a sixth series designated "First
Mortgage Bonds, 9-1/4% Series F due 1995," herein sometimes called "1995 Series
F Bonds," which 1995 Series F Bonds have since been paid and redeemed by the
Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Dollars ($10,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Eighth Supplemental Indentures, inclusive as a seventh series designated "First
Mortgage Bonds, 10% Series G due 1987," herein sometimes called "1987 Series G
Bonds," which 1987 Series G Bonds have since been paid and redeemed by the
Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Dollars ($10,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Ninth Supplemental Indentures, inclusive, as an eighth series designated "First
Mortgage Bonds, 9% Series H due 1992," herein sometimes
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called "1992 Series H Bonds," which 1992 Series H Bonds have since been paid and
redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Nine
Million Five Hundred Forty-Five Thousand Dollars ($9,545,000) were issued under
and in accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Tenth Supplemental Indentures, inclusive, as a
ninth series designated "First Mortgage Bonds, 9-1/8% Series J due 2000," herein
sometimes called "2000 Series J Bonds," which 2000 Series J Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Three Hundred Thousand Dollars ($10,300,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Eleventh Supplemental Indentures, inclusive, as a tenth
series designated "First Mortgage Bonds, 10-3/8% Series K due 2013," herein
sometimes called "2013 Series K Bonds," which 2013 Series K Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Five Hundred Thousand Dollars ($10,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Twelfth Supplemental Indentures, inclusive, as an
eleventh series designated "First Mortgage Bonds, 10-l/2% Series L due 2014,"
herein sometimes called "2014 Series L Bonds," which 2014 Series L Bonds have
since been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Twelve
Million Dollars ($12,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Thirteenth Supplemental Indentures, inclusive, as a twelfth series designated
"First Mortgage Bonds, 10.85% Series M due 2000," herein sometimes called "2000
Series M Bonds," which 2000 Series M Bonds have since been paid and redeemed by
the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Dollars ($10,000,000) were issued under and in accordance with the terms
of the Original Indenture as supplemented and amended by the First through the
Fourteenth Supplemental Indentures, inclusive, as a thirteenth series designated
"First Mortgage Bonds, 10% Series N due 2001," herein sometimes called "2001
Series N Bonds," which 2001 Series N Bonds have since been paid and redeemed by
the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Fifteenth Supplemental Indentures, inclusive, as a fourteenth series designated
"First Mortgage Bonds, 8.50% Series P due 2002," herein sometimes called "2002
Series P Bonds," which 2002 Series P Bonds have since been paid and redeemed by
the Company; and
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WHEREAS, thereafter Bonds in the aggregate principal amount of Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Sixteenth Supplemental Indentures, inclusive, as a
fifteenth series designated "First Mortgage Bonds, 9% Series Q due 2017," herein
sometimes called "2017 Series Q Bonds," which 2017 Series Q Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through the Seventeenth Supplemental Indentures, inclusive, as a sixteenth
series designated "First Mortgage Bonds, 8.50% Series R due 2018," herein
sometimes called "2018 Series R Bonds," which 2018 Series R Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Twenty
Million Dollars ($20,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Eighteenth Supplemental Indentures, inclusive, as a seventeenth series
designated "First Mortgage Bonds, 10.10% Series S due 2009," herein sometimes
called "2009 Series S Bonds," which 2009 Series S Bonds have since been paid and
redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Nine
Million Five Hundred Forty-Five Thousand Dollars ($9,545,000) were issued under
and in accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Nineteenth Supplemental Indentures, inclusive,
as an eighteenth series designated "First Mortgage Bonds, 7.05% Series T due
2016," herein sometimes called "2016 Series T Bonds," which 2016 Series T Bonds
have since been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were authorized, of which Fifteen Million Dollars
($15,000,000) have been issued under and in accordance with the terms of the
Original Indenture, as supplemented and amended by the First through the
Nineteenth Supplemental Indentures, inclusive, as a nineteenth series designated
"First Mortgage Bonds, 7.25% Series U due 2021," herein sometimes called "2021
Series U Bonds," which 2021 Series U Bonds have since been paid and redeemed by
the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through the Twentieth Supplemental Indentures, inclusive, as a twentieth
series designated "First Mortgage Bonds, 7.50% Series V due 2002," herein
sometimes called "2002 Series V Bonds," which 2002 Series V Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Three Hundred Thousand Dollars ($10,300,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Twenty-First
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Supplemental Indentures, inclusive, as a twenty-first series designated "First
Mortgage Bonds, 5-3/8% Series W due 2023," herein sometimes called "2023 Series
W Bonds," of which Ten Million Three Hundred Thousand Dollars ($10,300,000) in
principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Thirty
Million Dollars ($30,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twenty-Second Supplemental Indentures, inclusive, as a twenty-second series
designated "First Mortgage Bonds, 6.27% Series X due 2008," herein sometimes
called "2008 Series X Bonds," of which Thirty Million Dollars ($30,000,000) in
principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Five Hundred Thousand Dollars ($10,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Twenty-Third Supplemental Indentures, inclusive, as a
twenty-third series designated "First Mortgage Bonds, 6.25% Series Y due 2024,"
herein sometimes called "2024 Series Y Bonds," of which Ten Million Five Hundred
Thousand Dollars ($10,500,000) in principal amount are outstanding at the date
hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through the Twenty-Fourth Supplemental Indentures, inclusive, as a
twenty-fourth series designated "First Mortgage Bonds, 8.25% Series Z due 2004,"
herein sometimes called "2004 Series Z Bonds," of which Twenty-Five Million
Dollars ($25,000,000) in principal amount are outstanding at the date hereof;
and
WHEREAS, thereafter Bonds in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through the Twenty-Fifth Supplemental Indentures, inclusive, as a
twenty-fifth series designated "First Mortgage Bonds, Adjustable Rate Series AA
due 2030," herein sometimes called "2030 Series AA Bonds," of which Twenty-Five
Million Dollars ($25,000,000) in principal amount are outstanding at the date
hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Sixteen
Million Dollars ($16,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twenty-Fifth Supplemental Indentures, inclusive, as a twenty-sixth series
designated "First Mortgage Bonds, Adjustable Rate Series BB due 2030," herein
sometimes called "2030 Series BB Bonds," of which Sixteen Million Dollars
($16,000,000) in principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Twenty
Million Dollars ($20,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twenty-Sixth Supplemental Indentures, inclusive, as a twenty-seventh series
designated "First Mortgage Bonds, 6-7/8 Series CC due
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2010," herein sometimes called "2010 Series CC Bonds," of which Twenty Million
Dollars ($20,000,000) in principal amount are outstanding at the date hereof;
and
WHEREAS, thereafter Bonds in the aggregate principal amount of Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Twenty-Seventh Supplemental Indentures, inclusive, as a
twenty-eighth series designated "First Mortgage Bonds, Adjustable Rate Series DD
due 2027," herein sometimes called "2027 Series XX Xxxxx," of which Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) in principal amount are
outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Nine
Million Five Hundred Forty-Five Thousand Dollars ($9,545,000) were issued under
and in accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Twenty-Eighth Supplemental Indentures,
inclusive, as a twenty-ninth series designated "First Mortgage Bonds, Adjustable
Rate Series EE due 2028," herein sometimes called "2028 Series XX Xxxxx," of
which Nine Million Five Hundred Forty-Five Thousand Dollars ($9,545,000) in
principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twenty-Eighth Supplemental Indentures, inclusive, as a thirtieth series
designated "First Mortgage Bonds, Adjustable Rate Series FF due 2028," herein
sometimes called "2028 Series FF Bonds," of which Fifteen Million Dollars
($15,000,000) in principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Eighteen
Million Dollars ($18,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twenty-Ninth Supplemental Indentures, inclusive, as a thirty-first series
designated "First Mortgage Bonds, Adjustable Rate Series GG due 2033," herein
sometimes called "2033 Series XX Xxxxx," of which Eighteen Million Dollars
($18,000,000) in principal amount are outstanding at the date hereof; and
WHEREAS, that on May 17, 2000 BNY Midwest Trust Company, as transferee
of the corporate trust business of Xxxxxx Trust and Savings Bank, Trustee under
the Original Indenture, became successor Trustee under the Original Indenture;
and
WHEREAS, the Original Indenture provides that, subject to certain
exceptions not presently relevant, such changes in or additions to the
provisions of the Indenture (the term "Indenture" and other terms used herein
having the meanings assigned thereto in the Original Indenture except as herein
expressly modified) may be made to add to the covenants and agreements of the
Company in the Indenture contained other covenants and agreements thereafter to
be observed by the Company; and to provide for the creation of any series of
Bonds, designating the series to be created and specifying the form and
provisions of the Bonds of such series as in the Indenture provided or
permitted; and
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WHEREAS, the Indenture further provides that the Company and the
Trustee may enter into indentures supplemental to the Indenture to convey,
transfer and assign unto the Trustee and to subject to the lien of the Indenture
additional properties acquired by the Company; and
WHEREAS, the Company has entered into a Loan Agreement dated as of
December 1, 2003 (the "Loan Agreement") with the New Jersey Economic Development
Authority (herein sometimes called the "EDA"), a public body corporate and
politic of the State of New Jersey, pursuant to which the proceeds of the
issuance by the EDA of Twelve Million Dollars ($12,000,000) in aggregate
principal amount of its Natural Gas Facilities Revenue Bonds, Series 2003 (New
Jersey Natural Gas Company Project) (the "2003 XXX Xxxxx") are to be loaned from
time to time to the Company to finance a portion of the cost of the construction
of natural gas pipelines and auxiliary equipment throughout the franchise
portion of Xxxxxx County, New Jersey, which 2003 XXX Xxxxx are being issued
pursuant to the XXX Xxxx Indenture (as defined below); and
WHEREAS, the Company has duly determined to create a thirty-second
series of Bonds, to be known as "First Mortgage Bonds, Series HH due 2038,"
herein sometimes called "2038 Series XX Xxxxx," to be issued and delivered (in
conjunction with the assignment by the EDA of certain of its rights under the
Loan Agreement) to SunTrust Bank, as trustee (the "EDA Loan Trustee") pursuant
to an indenture of trust dated as of December 1, 2003 (the "XXX Xxxx Indenture")
between the EDA and the EDA Loan Trustee for the benefit and security of the
holders of the 2003 XXX Xxxxx, all as herein provided, and to add to the
covenants and agreements contained in the Indenture the covenants and agreements
hereinafter set forth; and
WHEREAS, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Indenture and
pursuant to appropriate resolutions of its Board of Directors, has duly resolved
and determined to make, execute and deliver to the Trustee a Thirtieth
Supplemental Indenture in the form hereof for the purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make this
Thirtieth Supplemental Indenture a valid, binding and legal instrument have been
done, performed and fulfilled and the execution and delivery hereof have been in
all respects duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That NEW JERSEY NATURAL GAS COMPANY, by way of further assurance and in
consideration of the premises and of the acceptance by the Trustee of the trusts
hereby created and of One Dollar to it duly paid by the Trustee at or before the
ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of principal of and any premium
which may be due and payable on and the interest on all Bonds at any time issued
and outstanding under the Indenture according to their tenor and effect, and the
performance and observance by the Company of all the covenants and conditions
herein and therein contained, has granted, bargained, sold, warranted, aliened,
remised, released, conveyed, assigned, transferred, mortgaged, pledged, set over
and confirmed, and by these presents does grant, bargain, sell, warrant, alien,
remise, release, convey, assign, transfer, mortgage, pledge, set over and
confirm, unto the party of the second part, and to its successors in the trust,
and to it and
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its assigns forever, and has granted and does hereby grant thereunto a security
interest in, all of the property, real, personal and mixed, now owned by the
Company and situated in the Counties of Burlington, Middlesex, Monmouth, Xxxxxx,
Ocean, Passaic, Somerset and Sussex in the State of New Jersey, or wherever
situate (except property specifically excepted from the lien of the Indenture by
the terms of the Indenture) and also all of the property, real, personal and
mixed, hereafter acquired by the Company wherever situate (except property
specifically excepted from the lien of the Indenture by the terms of the
Indenture), including both as to property now owned and property hereafter
acquired, without in anywise limiting or impairing the enumeration of the same,
the scope and intent of the foregoing or of any general or specific description
contained in the Indenture, the following:
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 for the construction, maintenance, and
operation of the gas plants and systems 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.
II. GAS DISTRIBUTION SYSTEMS AND RELATED PROPERTY
All gas generating plants, gas storage plants and gas manufacturing
plants of the Company, all the buildings, erections, structures, generating and
purifying apparatus, holders, engines, boilers, benches, retorts, tanks,
instruments, appliances, apparatus, 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, 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.
All gas distribution or gas transmission systems of the Company, all
buildings, erections, structures, generating and purifying apparatus, holders,
engines, boilers, benches, retorts, 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. Without limiting the
generality of the foregoing, there are expressly included the gas distribution
or gas transmission systems located in the Counties of Burlington, Middlesex,
Monmouth, Xxxxxx, Ocean, Passaic, Somerset and Sussex in the State of New
Jersey, and in the following municipalities in said State and Counties: Aberdeen
Township
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(formerly Matawan Township), Allenhurst Borough, City of Xxxxxx Park, Atlantic
Highlands Borough, Avon Borough, Barnegat Light Borough, Barnegat Township
(formerly named Union Township), Bay Head Borough, Beach Haven Borough,
Beachwood Borough, Belmar Borough, Berkeley Township, Boonton Town, Boonton
Township, Xxxxxxx Beach Borough, Brick Township, Brielle Borough, Colts Neck
Township, Deal Borough, Denville Township, Dover Town, Dover Township,
Eagleswood Township, East Brunswick Township, Eatontown Borough, Englishtown
Borough, Fair Haven Borough, Farmingdale Borough, Franklin Township in Somerset
County, Freehold Borough, Freehold Township, Hanover Township, Xxxxxx Cedars
Borough, Hazlet Township, Highlands Borough, Holmdel Township, Hopatcong
Borough, Xxxxxx Township, Interlaken Borough, Island Heights Borough, Xxxxxxx
Township, Jefferson Township, Keansburg Borough, Keyport Borough, Lacey
Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Lincoln Park
Borough, Little Egg Harbor Township, Little Silver Borough, Loch Xxxxxx Village,
Long Beach Township, Long Branch City, Manalapan Township, Manasquan Borough,
Manchester Township, Mantoloking Borough, Marlboro Township, Matawan Borough,
Middletown Township, Milltown Borough, Mine Hill Township, Monmouth Beach
Borough, Monroe Township, Montville Township, Xxxxxx Plains Borough, Mount
Arlington Borough, Mount Olive Township, Mountain Lakes Borough, Neptune City
Borough, Neptune Township, Netcong Borough, New Brunswick City, North Brunswick
Township, Ocean Township in Monmouth County, Ocean Township in Ocean County,
Ocean Gate Borough, Oceanport Borough, Old Bridge Township (formerly named
Madison Township), Parsippany-Xxxx Hills Township, Pine Beach Borough, Point
Pleasant Borough, Point Pleasant Beach Borough, Xxxxxxxx Township, Red Bank
Borough, Rockaway Borough, Rockaway Township, Roxbury Township, Rumson Borough,
Sayreville Borough, Sea Bright Borough, Sea Girt Borough, Seaside Heights
Borough, Seaside Park Borough, Ship Bottom Borough, Shrewsbury Borough,
Shrewsbury Township, South Belmar Borough, South Brunswick Township, South River
Borough, South Toms River Borough, Spring Lake Borough, Spring Lake Heights
Borough, Xxxxxxxx Township, Surf City Borough, Tinton Falls Borough (formerly
named New Shrewsbury Borough), Tuckerton Borough, Union Beach Borough, Union
Township, Victory Gardens Borough, Wall Township, Washington Township in
Burlington County, Washington Township in Xxxxxx County, West Long Branch
Borough, West Milford Township and Xxxxxxx Borough.
III. 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.
TOGETHER WITH ALL AND SINGULAR the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the Trust Estate, or any
part thereof, with the reversion or reversions, remainder and remainders, rents,
issues, income and profits thereof, and all the right, title, interest and claim
whatsoever, at law or in equity, which the Company now has or which it may
hereafter acquire in and to the Trust Estate and every part and parcel thereof.
TO HAVE AND TO HOLD the Trust Estate and all and singular the lands,
properties, estates, rights, franchises, privileges and appurtenances hereby
mortgaged, conveyed, pledged or
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assigned, or intended so to be, together with all the appurtenances thereto
appertaining, unto the Trustee and its successors and assigns forever;
SUBJECT, HOWEVER, as to property hereby conveyed, to Permitted
Encumbrances;
BUT IN TRUST, NEVERTHELESS, under and subject to the terms and
conditions hereafter set forth, for the equal and proportionate use, benefit,
security and protection of each and every person and corporation who may be or
become the holders of the Bonds and coupons hereby secured, if any, without
preference, priority or distinction as to the lien or otherwise of one Bond or
coupon over or from the others by reason of priority in the issue or negotiation
thereof, or by reason of the date of maturity thereof, or otherwise (except as
any sinking, amortization, improvement, renewal or other analogous fund,
established in accordance with the provisions of the Indenture, may afford
additional security for the Bonds of any particular series and except as
provided in Section 9.02 of the Indenture), and for securing the observance and
performance of all the terms, provisions and conditions of the Indenture.
THIS INDENTURE FURTHER WITNESSETH, that the Company has agreed and
covenanted, and hereby does agree and covenant, with the Trustee and its
successors and assigns and with the respective holders from time to time of the
Bonds and coupons, or any thereof, as follows:
ARTICLE I
CERTAIN AMENDMENTS OF INDENTURE
Section 1.1. The Original Indenture, as heretofore amended, be and it
hereby is further amended in the following respects, the section numbers
specified below being the sections of the Indenture in which such amendments
occur:
Section 1.01. The following definition be and it hereby is added
immediately after the twenty-ninth sentence of Section 1.01B:
"'THIRTIETH SUPPLEMENTAL INDENTURE' shall mean the Supplemental
Indenture dated as of December 1, 2003, supplemental to the Indenture."
Section 1.01. The following definition be and it hereby is added
immediately after the thirty-first sentence of Section 1.01F:
"'2038 SERIES XX XXXX' shall mean one of the First Mortgage Bonds,
Series HH due 2038, issued hereunder."
Section 2.11. The following be and it hereby is added at the end of
Section 2.11:
"No charge except for taxes or governmental charges shall be made
against any holder of any 2038 Series XX Xxxx for the exchange,
transfer or registration of transfer thereof."
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Section 8.08. The period at the end of the first paragraph of Section
8.08 be and it hereby is deleted and the following words and figures be and they
hereby are added thereto:
", and the 2038 Series XX Xxxxx shall be redeemed at the redemption
price specified in Section 10.79 and Section 10.80."
ARTICLE II
2038 SERIES XX XXXXX
Section 2.1. There shall be a thirty-second series of Bonds, known as
and entitled "First Mortgage Bonds, Series HH due 2038" or "First Mortgage
Bonds, Series HH" (herein and in the Indenture referred to as the "2038 Series
XX Xxxxx"), and the form thereof shall contain suitable provisions with respect
to the matters hereinafter in this Section specified and shall in other respects
be substantially as set forth in the preambles to the Original Indenture.
The aggregate principal amount of 2038 Series XX Xxxxx which may be
authenticated and delivered and outstanding under the Indenture is Twelve
Million Dollars ($12,000,000).
The 2038 Series XX Xxxxx shall be payable to the EDA Loan Trustee, and
shall be nontransferable except to a successor of the EDA Loan Trustee.
The 2038 Series XX Xxxxx shall bear interest at the minimum rate per
annum necessary to yield interest in amounts sufficient, when taken together
with other amounts available therefor under the XXX Xxxx Indenture, to pay the
interest from time to time payable on the 2003 XXX Xxxxx, computed on the same
basis as the 2003 XXX Xxxxx (interest on overdue principal and premium, if any,
and, to the extent legally enforceable, interest, being at the rate of six
percent (6%) per annum), but in no event shall the interest rate on the 2038
Series XX Xxxxx exceed twelve percent (12%) per annum; and the 2038 Series XX
Xxxxx shall mature on December 1, 2038, subject to prior redemption as described
herein. The amount of "annual interest charges" on the 2038 Series XX Xxxxx,
within the meaning of any provision of the Indenture requiring a determination
of said amount as a condition to the issuance of any Bonds thereunder
(including, without limitation, the 2038 Series XX Xxxxx), shall mean the amount
calculated by applying to the 2038 Series XX Xxxxx the interest rate of twelve
percent (12%) per annum; provided, however, that if the rate of interest on the
2003 XXX Xxxxx shall have become fixed and determined at a per annum rate lower
than twelve percent (12%) for a period not less than the remaining maturity of
said 2003 XXX Xxxxx (whether said 2003 XXX Xxxxx shall mature at their stated
maturity, by earlier redemption or otherwise), then said lower rate shall be
used to determine the amount of the "annual interest charges" on the 2038 Series
XX Xxxxx.
The 2038 Series XX Xxxxx shall be in the form of registered Bonds
without coupons of denominations of Five Thousand Dollars ($5,000) and any
integral multiple thereof which may be authorized by the Company, the issue of a
registered Bond without coupons in any such denomination to be conclusive
evidence of such authorization. The 2038 Series XX Xxxxx shall be dated as
provided in Section 2.05 of the Indenture. All 2038 Series XX Xxxxx shall bear
interest
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from their respective dates, such interest to be payable, upon the terms of and
otherwise in accordance with the 2038 Series XX Xxxxx, on the first business day
preceding each date on which interest shall from time to time be payable on the
2003 XXX Xxxxx; provided, that the obligation of the Company to make payments
with respect to the principal of, premium, if any, and interest on the 2038
Series XX Xxxxx shall be fully or partially, as the case may be, satisfied and
discharged to the extent that at the time any such payment shall be due, the
then due principal of, premium, if any, and interest on any of the 2003 XXX
Xxxxx shall have been fully or partially paid from payments made by the Company
under the Loan Agreement or from other moneys expressly available therefor in
the principal and interest account for the 2003 XXX Xxxxx under the XXX Xxxx
Indenture or, as far as principal is concerned, reduced by the principal amount
of any of the 2003 XXX Xxxxx deemed paid pursuant to Article X of the XXX Xxxx
Indenture. The principal of and the premium, if any, and interest on the 2038
Series XX Xxxxx shall be payable at the principal office of the Trustee, in the
City of Chicago, Illinois, or, at the option of the Company, at the "Principal
Office" (as that term is defined in the XXX Xxxx Indenture) of the EDA Loan
Trustee, in any coin or currency of the United States of America which at the
time of payment shall be legal tender for the payment of public and private
debts.
Notwithstanding any other provision of the Indenture or of the 2038
Series XX Xxxxx, payments of the principal of and the premium, if any, and
interest on any 2038 Series XX Xxxx may be made directly to the registered
holder thereof without presentation or surrender thereof or the making of any
notation thereon if there shall be filed with the Trustee a Certificate of the
Company to the effect that such registered holder (or the person for whom such
registered holder is a nominee) and the Company have entered into a written
agreement that payment shall be so made; provided, however, that before such
registered holder transfers or otherwise disposes of any 2038 Series XX Xxxx,
such registered holder will, at its election, either endorse thereon (or on a
paper annexed thereto) the principal amount thereof redeemed and the last date
to which interest has been paid thereon or make such Bond available to the
Company at the principal office of the Trustee for the purpose of making such
endorsement thereon.
The 2038 Series XX Xxxxx shall be subject to redemption at the option
of the Company or otherwise, in the manner provided in the applicable provisions
of Article Ten of the Indenture, as amended by Article IV of this Supplemental
Indenture.
The 2038 Series XX Xxxxx shall be excluded from the benefits of, and
shall not be subject to redemption through the operation of, a Mandatory Sinking
Fund pursuant to Section 11.02 of the Indenture and shall also be excluded from
the benefits of the covenants of Section 9.08 and Section 11.01 of the
Indenture.
Notwithstanding the provisions of Section 10.04 or any other provision
of the Indenture, the selection of 2038 Series XX Xxxxx to be redeemed shall, in
case fewer than all of the outstanding 2038 Series XX Xxxxx are to be redeemed,
be made by the Trustee pro rata (to the nearest multiple of Five Thousand
Dollars ($5,000)) among the registered holders of the 2038 Series XX Xxxxx in
proportion, as nearly as practicable, to the respective unpaid principal amounts
of 2038 Series XX Xxxxx registered in the names of such holders, with
adjustments, to the extent practicable, to compensate for any prior redemption
not made exactly in such proportion (or
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otherwise as may be specified by a written order signed by the registered
holders of all outstanding 2038 Series XX Xxxxx).
The definitive 2038 Series XX Xxxxx may be issued in the form of
engraved Bonds or Bonds printed or lithographed on steel engraved borders or
Bonds in typed form on normal bond paper. Subject to the foregoing provisions of
this Section and the provisions of Section 2.11 of the Indenture, all definitive
2038 Series XX Xxxxx shall be fully exchangeable for other Bonds of the same
series, of like aggregate principal amounts, and, upon surrender to the Trustee
at its principal office, shall be exchangeable for other Bonds of the same
series of a different authorized denomination or denominations, as requested by
the holder surrendering the same. The Company will execute, and the Trustee
shall authenticate and deliver, registered Bonds without coupons, whenever the
same shall be required for any such exchange.
Section 2.2. 2038 Series XX Xxxxx in the aggregate principal amount of
Twelve Million Dollars ($12,000,000) may forthwith upon the execution and
delivery of this Supplemental Indenture, or from time to time thereafter, be
executed by the Company and delivered to the Trustee, and shall thereupon be
authenticated and delivered by the Trustee upon compliance by the Company with
the provisions of Articles Four, Five or Six of the Indenture, without awaiting
the filing or recording of this Supplemental Indenture. No additional 2038
Series XX Xxxxx shall be issued under Article Four, Five or Six of the Indenture
without the consent in writing of the holders of all the outstanding 2038 Series
XX Xxxxx.
ARTICLE III
REDEMPTION OF THE 2038 SERIES XX XXXXX
Section 3.1. The following Section 10.79 and Section 10.80 be and they
hereby are added to Article Ten of the Indenture:
"Section 10.79. The 2038 Series XX Xxxxx shall be subject to mandatory
redemption as follows: payments of principal of and premium on the 2038 Series
XX Xxxxx shall be made to the EDA Loan Trustee to redeem 2038 Series XX Xxxxx in
such amounts as shall be necessary, in accordance with the provisions of the
Loan Agreement, to provide funds under the Loan Agreement to (a) make, when due,
payment at maturity (including, without limitation, maturity upon acceleration
of the 2003 XXX Xxxxx) and (b) make, when due, any prepayment required by the
Loan Agreement in connection with any mandatory or optional redemption of 2003
XXX Xxxxx; provided, however, that the obligation of the Company to make any
redemption payments under this Section shall be fully or partially, as the case
may be, satisfied and discharged to the extent that at any time such payment
shall be due, the then due payment at maturity or redemption payment on any of
the 2003 XXX Xxxxx shall have been fully or partially made from payments made by
the Company under the Loan Agreement or from other moneys expressly available
therefor in a redemption account or subaccount for the 2003 XXX Xxxxx under the
XXX Xxxx Indenture or, as far as principal is concerned, reduced by the
principal amount of any 2003 XXX Xxxxx deemed paid pursuant to Article X of the
XXX Xxxx Indenture. Terms used
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and not defined in this Section shall have the respective meanings given to them
in the Thirtieth Supplemental Indenture dated as of December 1, 2003."
"Section 10.80. In the case of the redemption of 2038 Series XX Xxxxx
out of moneys deposited with the Trustee pursuant to Section 8.08, such 2038
Series XX Xxxxx shall, upon compliance with provisions of Section 10.04, and
subject to the provisions of Section 2.1 of the Thirtieth Supplemental
Indenture, be redeemable at the principal amounts thereof, together with
interest accrued thereon to the date fixed for redemption, without premium."
ARTICLE IV
MISCELLANEOUS
Section 4.1. The Company is lawfully seized and possessed of all the
real estate, franchises and other property described or referred to in the
Indenture (except properties released from the lien of the Indenture pursuant to
the provisions thereof) as presently mortgaged, subject to the exceptions stated
therein, such real estate, franchises and other property are free and clear of
any lien prior to the lien of the Indenture except as set forth in the Granting
Clauses of the Indenture and the Company has good right and lawful authority to
mortgage the same as provided in and by the Indenture.
Section 4.2. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Supplemental Indenture other than as set forth in
the Indenture, and this Supplemental Indenture is executed and accepted by the
Trustee subject to all the terms and conditions of its acceptance of the trust
under the Indenture, as fully as if said terms and conditions were herein set
forth at length.
Section 4.3. The terms used in this Supplemental Indenture shall have
the meanings assigned thereto in the Indenture. Reference by number in this
Supplemental Indenture to Articles or Sections shall be construed as referring
to Articles or Sections contained in the Indenture, unless otherwise stated.
Section 4.4. As amended and modified by this Supplemental Indenture,
the Indenture is in all respects ratified and confirmed and the Indenture and
this Supplemental Indenture shall be read, taken and construed as one and the
same instrument.
Section 4.5. Neither the approval by the Board of Public Utilities of
the State of New Jersey of the execution and delivery of this Supplemental
Indenture nor the approval by said Board of the issue of any Bonds under the
Indenture shall in any way be construed as the approval by said Board of any
other act, matter or thing which requires approval of said Board under the laws
of the State of New Jersey; nor shall approval by said Board of the issue of any
Bonds under the Indenture bind said Board or any other public body or authority
of the State of New Jersey having jurisdiction in the premises in any future
application for the issue of Bonds under the Indenture or otherwise.
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Section 4.6. This Supplemental Indenture may be executed in any number
of counterparts and all said counterparts executed and delivered each as an
original shall constitute but one and the same instrument.
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NEW JERSEY NATURAL GAS COMPANY HEREBY DECLARES THAT IT HAS READ THIS
THIRTIETH SUPPLEMENTAL INDENTURE, HAS RECEIVED A COMPLETELY FILLED-IN TRUE COPY
OF IT WITHOUT CHARGE AND HAS SIGNED THIS THIRTIETH SUPPLEMENTAL INDENTURE ON THE
DATE CONTAINED IN ITS ACKNOWLEDGMENT HEREOF.
IN WITNESS WHEREOF, NEW JERSEY NATURAL GAS COMPANY, party of the first
part, has caused these presents to be signed in its corporate name by its
President or a Vice President and its corporate seal to be hereunto affixed and
attested by its Secretary or an Assistant Secretary, and BNY MIDWEST TRUST
COMPANY, party of the second part, in evidence of its acceptance of the trust
hereby created, has caused these presents to be signed in its corporate name by
one of its Vice Presidents and its corporate seal to be hereunto affixed and
attested by its Secretary or one of its Assistant Secretaries.
NEW JERSEY NATURAL GAS COMPANY
By
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President and
Treasurer
[Corporate Seal]
ATTEST:
_____________________________________
Xxxxx X. Xxxxxx
Secretary
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Signed, sealed and delivered by NEW JERSEY
NATURAL GAS COMPANY in the presence of:
________________________________
Name:
________________________________
Name:
BNY MIDWEST TRUST COMPANY, as Trustee
By
Name: Xxxx Xxxxxxxxx
Title: Vice President
[Corporate Seal]
ATTEST:
________________________________
Name: X.X. Xxxxxxx
Title: Assistant Secretary
Signed, sealed and delivered by BNY MIDWEST
TRUST COMPANY in the presence of:
________________________________
Name:
________________________________
Name:
-00-
XXXXX XX XXX XXXXXX )
) SS:
COUNTY OF MONMOUTH )
BE IT REMEMBERED that on this ______ day of December, 2003, before me,
the subscriber, an Attorney-at-Law of the State of New Jersey, and I hereby
certify that I am such an Attorney-at-Law as witness my hand, personally
appeared Xxxxx X. Xxxxxx to me known who, being by me duly sworn according to
law, on her oath, does depose and make proof to my satisfaction that she is the
Secretary of NEW JERSEY NATURAL GAS COMPANY, the grantor or mortgagor in the
foregoing Supplemental Indenture named; that she well knows the seal of said
corporation; that the seal affixed to said Supplemental Indenture is the
corporate seal of said corporation, and that it was so affixed in pursuance of
resolutions of the Board of Directors of said corporation; that Xxxxxxx X.
Xxxxxx, Xx. is a Senior Vice President and Treasurer of said corporation; that
she saw said Xxxxxxx X. Xxxxxx, Xx., as such Senior Vice President and
Treasurer, affix said seal thereto, sign and deliver said Supplemental
Indenture, and heard him declare that he signed, sealed and delivered the same
as the voluntary act and deed of said corporation, in pursuance of said
resolutions, and that this deponent signed her name thereto, at the same time,
as attesting witness.
___________________________
Xxxxx X. Xxxxxx
Secretary
Subscribed and sworn to before me,
an Attorney-at-Law of the State of
New Jersey, at Wall, New Jersey,
the day and year aforesaid.
_________________________________
Name:
Attorney-at-Law of the
State of New Jersey
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
BE IT REMEMBERED that on this ______ day of December, 2003, before me,
the subscriber, a Notary Public of the State of Illinois, personally appeared
X.X. Xxxxxxx to me known who, being by me duly sworn according to law, on his
oath, does depose and make proof to my satisfaction that he is an Assistant
Secretary of BNY MIDWEST TRUST COMPANY, the grantee or mortgagee and trustee in
the foregoing Supplemental Indenture named; that he well knows the seal of said
corporation; that the seal affixed to said Supplemental Indenture is the
corporate seal of said corporation, and that it was so affixed in pursuance of a
resolution of the Board of Directors of said corporation; that Xxxx Xxxxxxxxx is
a Vice President of said corporation; that he saw said Xxxx Xxxxxxxxx as such
Vice President affix said seal thereto, sign and deliver said Supplemental
Indenture, and heard said Xxxx Xxxxxxxxx declare that she signed, sealed and
delivered the same as the voluntary act and deed of said corporation, in
pursuance of said resolution, and that this deponent signed her name thereto, at
the same time, as attesting witness.
__________________________
Name: X.X. Xxxxxxx
Title: Assistant Secretary
Subscribed and sworn to before
me a Notary Public of the State
of Illinois at Chicago, the day
and year aforesaid.
__________________________________________
Notary Public of the State of Illinois
[SEAL]
