FLORIDA PUBLIC UTILITIES COMPANY, a subsidiary by merger of CHESAPEAKE UTILITIES CORPORATION To SIXTEENTH SUPPLEMENTAL INDENTURE Dated as of December 1, 2009 Supplementing and Modifying The Indenture of Mortgage and Deed of Trust Dated as of September...
Exhibit 4.9
FLORIDA PUBLIC UTILITIES COMPANY,
a subsidiary by merger of
CHESAPEAKE UTILITIES CORPORATION
To
U.S. BANK,
CORPORATE TRUST SERVICES,
Trustee
CORPORATE TRUST SERVICES,
Trustee
Dated as of December 1, 2009
Supplementing and Modifying The
Indenture of Mortgage and Deed of Trust
Indenture of Mortgage and Deed of Trust
Dated as of September 1, 1942
This is a Security Agreement covering Personal Property as
well as a Mortgage upon Real Estate and Other Property
well as a Mortgage upon Real Estate and Other Property
This is a Security Agreement covering Personal Property as
well as a Mortgage upon Real Estate and Other Property
well as a Mortgage upon Real Estate and Other Property
This Sixteenth Supplemental Indenture, dated for convenience as of December 1, 2009, between
CHESAPEAKE UTILITIES CORPORATION (Chesapeake), as Debtor, a Delaware corporation whose mailing
address is: 000 Xxxxxx Xxxx Xxxxxxxxx, Xxxxx, XX 00000, FLORIDA PUBLIC UTILITIES COMPANY (Florida
Public Utilities), as Primary Debtor, a Florida corporation whose mailing address is: 000 Xxxxx
Xxxxx Xxxxxxx, Xxxx Xxxx Xxxxx, XX 00000, and U.S. BANK NATIONAL ASSOCIATION (Trustee), a national
banking association whose mailing address is: 000 Xxxxx Xxxxxx, Xxxxx 000, Mail Code EX-FL-WWSJ,
Xxxxxxxxxxxx, XX 00000.
WHEREAS, on October 28, 2009, Chesapeake completed an Agreement and Plan of Merger, dated
April 17, 2009 (Merger Agreement) with Florida Public Utilities;
WHEREAS, the Merger was duly noticed and approved by the Board of Directors and the
Stockholders of both Chesapeake and Florida Public Utilities;
WHEREAS, Section 1.4 of the Merger Agreement provides that the merger shall have the effects
specified in the Merger Agreement and the Florida Business Corporations Act, Chapter 607, Florida
Statutes;
WHEREAS, Section 607.1106(1)(c), Florida Statues, provides that Chesapeake, as the parent
company, is responsible for the Indenture liabilities and obligations of Florida Public Utilities
(as Indenture is defined below);
WHEREAS, pursuant to the Merger Agreement, Florida Public Utilities survived the merger as a
wholly owned subsidiary of Chesapeake;
WHEREAS, Florida Public Utilities has heretofore executed and delivered to the Trustee an
Indenture of Mortgage and Deed of Trust dated as of September 1, 1942 (Original Indenture), to
secure, as provided therein, its bonds (in the Original Indenture and herein called the “Bonds”),
to be designated generally as its First Mortgage Bonds, and to be issued in one or more series as
provided in the Original Indenture; and
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WHEREAS, Florida Public Utilities has heretofore executed and delivered to the Trustee
fifteen indentures supplemental to the Original Indenture as follows: the First
Supplemental Indenture dated as of December 1, 1945 (First Supplemental Indenture), the Second
Supplemental Indenture dated as of March 1, 1948 (Second Supplemental Indenture), the Third
Supplemental Indenture dated as of August 1, 1954 (Third Supplemental Indenture), the Fourth
Supplemental Indenture dated as of August 1, 1956 (Fourth Supplemental Indenture), the Fifth
Supplemental Indenture dated as of September, 1958 (Fifth Supplemental Indenture), the Sixth
Supplemental Indenture dated as of July 1, 1959 (Sixth Supplemental Indenture), the Seventh
Supplemental Indenture dated as of June 1, 1963 (Seventh Supplemental Indenture), the Eighth
Supplemental Indenture dated as of June 1, 1965 (Eighth Supplemental Indenture), the Ninth
Supplemental Indenture dated as of July 1, 1972 (Ninth Supplemental Indenture), the Tenth
Supplemental Indenture dated as of July 1, 1975 (Tenth Supplemental Indenture), the Eleventh
Supplemental Indenture dated as of June 1, 1983 (Eleventh Supplemental Indenture), the Twelfth
Supplemental Indenture dated as of May 1, 1988, (Twelfth Supplemental Indenture), the Thirteenth
Supplemental Indenture dated as of June 1, 1992 (Thirteenth Supplemental Indenture) and the
Fourteenth Supplemental Indenture dated as of September 1, 2001 (Fourteenth Supplemental Indenture)
each of which supplemental indentures provided for the creation of a new series of First Mortgage
Bonds and said First, Second, Sixth, Twelfth, Thirteenth and Fourteenth Supplemental Indentures
modified certain provisions of the Original Indenture and the First Supplemental Indenture; and the
Fifteenth Supplemental Indenture dated as of November 1, 2001, (Fifteenth Supplemental Indenture)
which provided for the issuance of 4.9% First Mortgage Bonds (collectively, the Indenture);
NOW THEREFORE, it is the purpose of this Sixteenth Supplemental Indenture (Sixteenth
Supplemental Indenture) to have Chesapeake acknowledge and confirm its acceptance of the
responsibilities and obligations of Florida Public Utilities under the Merger Agreement and
created by the Original Indenture, as supplemented and modified since first issued.
1. Article 10, Section 10.01 of the Original Indenture provides:
§10.01 Nothing in this Indenture or any of the Bonds contained shall prevent any
merger or consolidation of any other corporation or corporations into or with the
Company, or any merger or consolidation of the Company (either singly or with one
or more other corporations) into or with, or any sale, conveyance, transfer or
lease, subject to the lien of this Indenture and to all the provisions hereof, of
all the mortgage property as, or substantially as, an entirety to, any corporation
lawfully entitled to acquire or lease and operate the same, or prevent successive
similar consolidations, mergers, sales, conveyances, transfers, or
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leases to which
the Company or its successor or assign or any subsequent successor or assign shall be a party; provided, however, and the Company covenants and agrees
that, such consolidation, merger, sale, conveyance, transfer or lease shall be upon
such terms as in no respect to impair the lien and security of this Indenture or any
of the rights or powers of the Trustees or of the bondholders hereunder; and
provided, further, that any such lease shall contain a provision that, if any
default described in §9.01 shall exist when such lease is made, or shall occur which
it is in effect, such lease may be terminated, at any time while such default
exists, by the Trustees or by the purchaser of the property so leased at any sale
hereunder, whether such sale be made under the power of sale hereby conferred or
under judicial proceedings; and provided, further, that in case the Company shall be
merged or consolidated as aforesaid (either singly or with one or more other
corporations) into or with any other corporation, or shall sell, convey or transfer
as aforesaid to another corporation all the mortgaged property as, or substantially
as, an entirety (but not in case of any lease and not in case any other corporation
or corporations shall be merged or consolidated into or with the Company under such
circumstances that the corporate identity of the Company is not changed) the
corporation resulting from such merger or consolidation or into or with which the
Company shall have been merged or consolidated or which shall have received a
conveyance or transfer as aforesaid (such corporation being sometimes in this
Article 10 called the “successor corporation”) shall, prior to or contemporaneously
with such merger, consolidation, conveyance or transfer, execute, and promptly cause
to be recorded, a supplemental indenture to and with the Trustees, satisfactory to
the Trustees, whereby the successor corporation shall assume and agree to pay duly
and punctually the principal of and interest on the Bonds issued hereunder in
accordance with the provisions of said Bonds and any coupons thereto appertaining
and this Indenture, and shall agree to perform and fulfill all the terms, covenants
and conditions of this Indenture binding the Company.
2. Chesapeake acknowledges and expressly states that nothing in the Merger Agreement shall be
deemed in any manner to impair the lien and security of the Indenture, or any of the rights or
powers of the holders of the Bonds previously issued under the Indenture;
3. Although Florida Public Utilities remains the Primary Debtor as to the obligations created
under the Indenture, in the event Florida Public Utilities is not able to fulfill Indenture
obligations, Chesapeake agrees to assume the due and punctual payment of the principal of, premium,
if any, and interest on, any and all of the Bonds, issued pursuant to the Indenture, and the
performance of every covenant of the Indenture.
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4. This Sixteenth Supplemental Indenture shall be deemed a contract made under the laws of the
state of Florida, and shall be governed and construed in accordance with the laws of Florida.
IN WITNESS WHEREOF, Chesapeake Utilities Corporation and Florida Public Utilities Company has
caused this Sixteenth Supplemental Indenture to be signed in the corporate names and on behalf of
its President or one of its Vice Presidents, and the corporate seals to be affixed and attested by
its Secretary or one of its Assistant Secretaries; and U.S. Bank National Association, in token of
its acceptance of the trust hereby created, has caused this Sixteenth Supplemental Indenture to be
signed in its name and on its behalf by its President or one of its Vice Presidents, and attested
by one of its Trust Officers, in token of its acceptance of the trust; all as of the day and year
first above written.
| CHESAPEAKE UTILITIES CORPORATION | FLORIDA PUBLIC UTILITIES COMPANY | |||||||
By:
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/s/ Xxxx Xxxxxx | By: | /s/ Xxxxxx Xxxxxxx | |||||
| Chief Financial Officer | Chief Financial Officer | |||||||
| U.S. BANK NATIONAL | ||||||||
| ASSOCIATION, Trustee | ||||||||
| By: | /s/ Xxxxxxxxx Xxxxx | |||||||
| Vice President | ||||||||
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XXXXX XX XXXXXXX
XXXXXX XX Xxxx Xxxxx
XXXXXX XX Xxxx Xxxxx
The foregoing instrument was acknowledged before me this 30 day of December, 2009, by Xxxxxx
Xxxxxxx, who is personally Known to me or who has produced ______ as identification and who took an oath.
Typed or Printed Name: Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxxxxxxx |  |
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My Commission Expires: December 13, 0000
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XXXXX XX XXXXXXX
XXXXXX OF [ILLEGIBLE]
XXXXXX OF [ILLEGIBLE]
The foregoing instrument was acknowledged before me this 7th day of January, 2009,
by Xxxxxxxxx Xxxxx, who is personally known to me or who has produced as identification and
who took an oath.
Typed or Printed Name:
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XXXXX XXXXXX |  |
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My Commission Expires:
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STATE OF FLORIDA
COUNTY OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
2009, by , who is personally known to me or who has
produced as identification and who took an oath.
Typed or Printed Name: |
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My Commission Expires:
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