SOUTH JERSEY GAS COMPANY TO THE BANK OF NEW YORK, Trustee AMENDMENT TO TWENTY- FOURTH SUPPLEMENTAL INDENTURE Dated as of March 31, 2006 With Respect to the Issuance of First Mortgage Bonds, 10% Medium Term Notes Series C and Amending the Indenture of...
This
instrument was
prepared by
/s/
Xxx X.
Xxxxxx
Xxx
X. Xxxxxx,
Esquire
MORTGAGE
SOUTH
JERSEY GAS COMPANY
TO
THE
BANK OF NEW YORK,
Trustee
________________________________________________
AMENDMENT
TO TWENTY-FOURTH SUPPLEMENTAL INDENTURE
Dated
as of March 31, 2006
________________________________________________
With
Respect to the Issuance of First Mortgage Bonds,
10%
Medium Term Notes Series C
and
Amending
the Indenture of Mortgage
Dated
October 1, 1947
________________________________________________
PHILA1\2458073\5 184120.000
THIS
AMENDMENT TO TWENTY-FOURTH SUPPLEMENTAL INDENTURE dated as of March 31, 0000
xxxxxxx XXXXX XXXXXX GAS COMPANY, a New Jersey corporation with principal
offices at Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 00, Xxxxxx, Xxx Xxxxxx 00000, party
of
the first part, hereinafter called the “Company,” and The Bank of New York
(successor trustee to Guarantee Bank), a New York banking corporation with
a
corporate trust office at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York
10286, party of the second part, hereinafter called “Trustee,” as Trustee under
the Indenture of Mortgage hereinafter mentioned, Witnesseth that:
Whereas,
the Company has heretofore duly executed, acknowledged and delivered to
Guarantee Bank and Trust Company (name later changed to Guarantee Bank), as
Trustee, a certain Indenture of Mortgage dated October 1, 1947 (hereinafter
called the “Original Indenture”) to provide for the issuance of, and to secure,
its First Mortgage Bonds (the “Bonds”), issuable in series and without limit as
to aggregate principal amount (except as provided under Article III of the
Original Indenture), and by the Original Indenture granted and conveyed unto
the
Trustee, upon the trusts and for the uses and purposes therein specifically
set
forth, certain real estate, franchises and other property therein described
or
which might be thereafter acquired by it, to secure the payment of the principal
of and interest on the Bonds from time to time issued thereunder, and pursuant
to which the Company provided for the creation of an initial series of First
Mortgage Bonds designated as “South Jersey Gas Company First Mortgage Bonds, 4
1/8% Series due 1977” (herein and in the Original Indenture sometimes called the
“Bonds of the Initial Series”); and
Whereas,
the Original Indenture provides that Bonds may be issued thereunder from time
to
time and in one or more series, upon conditions therein fully provided, the
Bonds of each series to be substantially in the forms therein recited for the
Bonds of the Initial Series but with such omissions, variations and insertions
as are authorized or permitted by the Original Indenture and determined and
specified by the Board of Directors of the Company; and
Whereas,
the Company has heretofore duly executed, acknowledged and delivered to the
Trustee supplemental indentures, including a Twenty-Fourth Supplemental
Indenture dated as of September 1, 2005 (hereinafter called the “Twenty-Fourth
Supplement”) and recorded as set forth on Schedule A annexed hereto, pursuant to
which the Company provided for the creation of a twenty-second series of Bonds
designated as “South Jersey Gas Company First Mortgage Bonds, 10% Medium Term
Notes Series C” (hereinafter sometimes called the “Bonds of the Twenty-Second
Series”) (the Original Indenture, all such supplemental indentures, including
the Twenty-Fourth Supplement, as amended by this Amendment to Twenty-Fourth
Supplemental Indenture, are hereinafter sometimes collectively referred to
as
the “Indenture”); and
Whereas,
the Twenty-Fourth Supplement authorizes the issuance of Bonds of the
Twenty-Second Series in the aggregate principal amount of up to $150,000,000,
and pursuant to the Indenture there have heretofore been executed, authenticated
and issued, and there are outstanding as of the date of execution hereof by
the
Company, Bonds of the Twenty-Second Series in the principal amount of
$100,000,000; and
PHILA1\2458073\5 184120.000
Whereas,
the Company has made provisions for the issuance and sale of its Medium Term
Notes, Series C, to be issued under an Indenture of Trust between the Company
and The Bank of New York, as trustee, and to be secured by Bonds of the
Twenty-Second Series; and
Whereas,
the Company deems it advisable and appropriate to amend the terms and the form
of the Bonds of the Twenty-Second Series contained in the Twenty-Fourth
Supplement, including the Bond of the Twenty-Second Series that has heretofore
been issued and is outstanding, and to amend Section 1.3 of the Twenty-Fourth
Supplement; and
Whereas,
the Company, by appropriate resolutions adopted by its Board of Directors
pursuant to the terms of the Original Indenture, has duly determined to amend
and restate the terms and form of the Bonds of the Twenty-Second Series and
the
form of the Trustee's Certificate of Authentication to be set forth on the
Bonds
of the Twenty-Second Series, respectively, as follows:
PHILA1\2458073\5 184120.000
2
[FORM
OF
BOND]
This
Bond
is not transferable except as provided in the Indenture (as hereinafter defined)
and in the Indenture of Trust dated as of October 1, 1998, as supplemented
on
June 29, 2000, July 5, 2000 and July 9, 2001 (“Note Indenture”) between the
Company and The Bank of New York, as Trustee (the “Note Trustee”).
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REGISTERED
|
REGISTERED
|
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NUMBER
|
AMOUNT
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R
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$
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SOUTH
JERSEY GAS COMPANY
FIRST
MORTGAGE BOND, 10% MEDIUM TERM NOTES SERIES C
South
Jersey Gas Company, a New Jersey corporation (hereinafter called the “Company”),
for value received, promises to pay on ___________, 20___ to the Note Trustee
or
registered assigns, on the surrender hereof, the principal sum of
_______________________ Dollars, and to pay interest thereon from the date
hereof, at the rate of 10% per annum (computed on the basis of a 360 day year
of
twelve 30 day months), such interest to be payable April 15 and October 15
in
each year until the obligation of the Company with respect to the payment
thereof shall be discharged; provided, however, that in the event that this
Bond
is utilized to secure a Note or Notes, then principal and interest shall be
payable on such dates as principal and interest is payable upon the
corresponding Note or Notes, whether at stated times, upon redemption or
acceleration or otherwise; further provided, however, that the Company shall
receive certain credits against such obligations as set forth in the
Twenty-Fourth Supplemental Indenture dated as of September 1, 2005 referred
to
below.
All
payments of principal hereof and interest hereon shall be paid at the corporate
trust office of The Bank of New York (the “Trustee”), or its successor as
trustee under the Indenture, or at such other places as the Company may agree,
in such coin or currency of the United States of America as at the time of
payment shall constitute legal tender for the payment of public and private
debts; provided, however, that any such payments of principal and interest
shall
be subject to receipt of certain credits against such payment obligations as
set
forth in the Twenty-Fourth Supplemental Indenture dated as of September 1,
2005
referred to below.
This
Bond
is one of an authorized issue of Bonds of the Company, designated as its First
Mortgage Bonds, without specified limit as to aggregate authorized principal
amount and issuable in one or more series (each of which is hereinafter referred
to as a “Series”), all issued or to be issued under and (except in respect of
any sinking, replacement, purchase, or other analogous fund provided in said
indenture or in any supplement thereto for any one or more particular Series
of
Bonds) equally and ratably secured by an indenture dated October 1, 1947
(hereinafter called the “Original Indenture”) between the Company and Guarantee
Bank and Trust Company, as predecessor trustee, as supplemented by indentures
supplemental thereto, including a Twenty-Fourth Supplemental
Indenture dated as of September 1, 2005, as amended by an Amendment to
Twenty-Fourth Supplemental Indenture dated
PHILA1\2458073\5 184120.000
3
as
of March 31, 2006 (as so amended, hereinafter called the “Twenty-Fourth
Supplement”), duly executed by the Company to the Trustee, to which Original
Indenture and all indentures supplemental thereto (herein sometimes collectively
called the “Indenture”) reference is hereby made for a description of the
property mortgaged and pledged and the respective rights of the Company,
the
Trustee and the Bondholders in respect thereof, and for a specification of
the
principal amount of said Bonds from time to time issuable thereunder and
the
conditions upon which said Bonds may be issued and shall be
secured.
The
Bonds
designated as “South Jersey Gas Company First Mortgage Bonds, 10% Medium Term
Notes Series C,” of which this Bond is one, are of similar tenor hereto, and are
limited to the aggregate authorized principal amount of $150,000,000, except
as
provided in Section 2.11 of the Original Indenture (relating to replacement
of
mutilated, lost, destroyed or stolen Bonds).
On
certain defaults by the Company, as provided in the Indenture, the principal
of
said Bonds may become payable in advance of the expressed maturity
thereof.
As
more
fully provided in the Indenture, the Bonds of this Series are subject to
redemption, either as a whole or in part from time to time, on not more than
60
nor less than 30 days' written notice in advance of the date fixed for
redemption through the application of proceeds from the condemnation of property
subject to the lien of the Indenture, or proceeds of the sale of such property
to a governmental body or agency having the power of eminent domain made as
the
result of the threat (evidenced in writing by such body or agency) of
condemnation of such property, but not through the application of funds from
any
other source, upon payment of the principal amount thereof together with accrued
interest to the date fixed for redemption. Except as set forth in this
paragraph, the Bonds of this Series are not subject to redemption.
This
Bond
is transferable, but only as provided in the Indenture and the Note Indenture,
upon surrender hereof, by the registered owner in person or by attorney duly
authorized in writing, at either of said offices where the principal hereof
and
interest hereon are payable. Upon any such transfer, a new fully registered
Bond
similar hereto will be issued to the transferee. This Bond may in like manner
be
exchanged for one or more new fully registered Bonds of the same Series of
other
authorized denominations but of the same aggregate principal amount. No service
charge shall be made for any such transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. The Company and the Trustee
hereunder and any paying agent may deem and treat the person in whose name
this
Bond is registered as the absolute owner hereof for the purpose of receiving
payment of or on account of the principal hereof and the interest hereon and
for
all other purposes; and neither the Company nor the Trustee hereunder nor any
paying agent shall be affected by any notice to the contrary.
The
Bonds
of this Series are issuable only in fully registered form, in any denomination
authorized by the Company.
As
more
fully provided in the Indenture, any of the provisions of the Indenture or
any
Bonds issued pursuant thereto may be altered, amended or eliminated, or
additional provisions added, with the consent of the holders or registered
owners (evidenced as provided in the Indenture) of at least 66 2/3% in principal
amount of the Bonds issued thereunder
PHILA1\2458073\5 184120.000
4
and
then
outstanding, or, if such change pertains only to the Bonds of one or more
Series
but less than all Series of Bonds outstanding, the holders or registered
owners
of at least 66 2/3% in principal amount of the then outstanding Bonds of
each
Series to which such change pertains; provided, however, that none of the
provisions of any Bond with respect to the time, terms, manner, or amount
of any
payment of the principal thereof or interest thereon shall be changed without
the consent of the holder or registered owner of such Bond nor shall there
be
reduced the percentage of Bonds the holders of which are required to consent
to
the execution of any supplemental indenture.
No
recourse under or upon any obligation, covenant or agreement contained in the
Indenture or in any indenture supplemental thereto, or in any Bond issued under
the Indenture or coupon 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 or law, statue 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 Indenture and
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, such incorporators, stockholders, officers or directors,
as
such, of the Company, or of 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 contained in the Indenture
or
in any indenture supplemental thereto, or in any of the Bonds or coupons thereby
secured, or implied therefrom.
The
execution by the Trustee, or by its successor in trust under the Indenture,
of
the Trustee's certificate of authentication set forth hereon is essential to
the
validity of this Bond.
IN
WITNESS WHEREOF, SOUTH JERSEY GAS COMPANY has caused this Bond to be duly
executed by the manual or facsimile signatures of its proper officers under
its
corporate seal or a facsimile thereof
Date:
SOUTH
JERSEY GAS
COMPANY
By:
[CORPORATE
SEAL]
,
President
Attest:
Secretary
PHILA1\2458073\5 184120.000
5
[FORM
OF
TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
The
within Bond is one of the Bonds of the Series designated therein, which are
described or provided for in the within-mentioned Indenture.
The
Bank of New York,
Trustee
By
Authorized
Signatory
Dated:
;
and
Whereas,
the execution and delivery of this Amendment to Twenty-Fourth Supplemental
Indenture have been duly authorized by the Board of Directors of the Company
at
a meeting duly called and held according to the law; and
Whereas,
all acts and things prescribed by law, by the charter and bylaws of the Company
and by the Indenture necessary to make this Amendment to Twenty-Fourth
Supplemental Indenture a valid, binding and legal instrument in accordance
with
its terms, have been done, performed and fulfilled, and the execution and
delivery hereof have been in all respects duly authorized.
NOW,
THEREFORE, THIS AMENDMENT TO TWENTY-FOURTH SUPPLEMENTAL INDENTURE WITNESSETH,
that it is hereby covenanted, declared and agreed by and between the Company
and
the Trustee for the benefit of those who shall hold Bonds of the Twenty-Second
Series, or any of them, as follows:
ARTICLE
I
AMENDMENT
OF DESCRIPTION OF BONDS OF THE TWENTY-SECOND SERIES
SECTION
1.1 Section
1.3 of the Twenty-Fourth Supplement is hereby amended and restated in its
entirety as follows:
SECTION
1.3 Each
Bond
of the Twenty-Second Series shall mature not later than forty years from the
date of its original issuance, and shall bear interest on the unpaid principal
amount thereof at the rate of 10% per annum (computed on the basis of a 360-day
year of twelve 30-day months), payable on March 15 and September 15 in each
year, until the obligation of the Company with respect to the payment thereof
shall be discharged; provided, however, that in the event that a Bond is
utilized to secure a Note or Notes, then such principal and interest shall
be
payable on such dates as principal and interest is payable upon the
corresponding Note or Notes; further provided, however, that the Company shall
receive certain credits against principal and interest as set forth in Section
2.1 of this 24th
Supplement. Subject to the provisions of Section 2.1 of this 24th
Supplement, all payments of principal and interest shall be made at the
corporate trust office of the Trustee, or at such other places as the Company
may agree, in such coin or currency of the United States of America as at the
time of payment shall constitute legal tender for the payment of public and
private debts.
PHILA1\2458073\5 184120.000
6
ARTICLE
II
MISCELLANEOUS
SECTION
2.1 As
amended by this Amendment to Twenty-Fourth Supplemental Indenture, each of
the
Twenty-Fourth Supplement and the Indenture is in all respects ratified and
confirmed and will remain in full force and effect, and the Indenture, including
the Twenty-Fourth Supplement, as amended by this Amendment to Twenty-Fourth
Supplemental Indenture, shall be read as one instrument. All terms used in
this
Amendment to Twenty-Fourth Supplemental Indenture shall have the same meaning
as
used elsewhere in the Indenture except where the context clearly indicates
otherwise.
SECTION
2.2 This
Amendment to Twenty-Fourth Supplemental Indenture has been dated as of March
31,
2006 for convenience. The date of actual execution hereof by each of the parties
is the date shown by the acknowledgment of execution hereof by its
officers.
SECTION
2.3 This
Amendment to Twenty-Fourth Supplemental Indenture may be executed in several
counterparts, each of which shall be considered an original and all collectively
as but one instrument.
SECTION
2.4. The
Trustee makes no representations as to the validity or sufficiency of this
Amendment to Twenty-Fourth Supplemental Indenture. The recitals and statements
herein are deemed to be those of the Company and not of the
Trustee.
PHILA1\2458073\5 184120.000
7
IN
WITNESS WHEREOF, the Company and the Trustee have caused these presents to
be
duly executed under the respective corporate seals by their respective proper
officers, all duly authorized thereunto, and have caused these presents to
be
dated as of the day and year first above written.
SOUTH
JERSEY GAS
COMPANY
By: /s/
Xxxxxx X.
Xxxxxx
Xxxxxx
X. Xxxxxx
President
ATTEST:
[SEAL]
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Secretary
THE
BANK OF NEW
YORK
By: /s/
Xxxxxx Xxxxx-Xxxxx
ATTEST:
[SEAL]
/s/
Xxxxxxx Xxxxx
PHILA1\2458073\5 184120.000
8
STATE
OF
NEW JERSEY :
: ss:
COUNTY
OF
ATLANTIC :
Be
it
remembered, that on April 19, 2006, before me, a Notary Public of New Jersey,
personally appeared Xxxxxx X. Xxxxxx, who, I am satisfied, is President of
South
Jersey Gas Company, one of the corporations named in the foregoing deed or
instrument, and I having first made known to him the contents thereof, he
acknowledged that he had signed the same as such officer for and on behalf
of
such corporation, that the same was made by such corporation as its voluntary
act and deed, and sealed with its corporate seal, by virtue of authority of
its
board of directors, and that he has received, without charge, a true copy of
said foregoing deed or instrument. All of which is hereby
certified.
/s/
Notary
Public of New
Jersey
My
Commission
Expires:
STATE
OF
NEW JERSEY :
: ss:
COUNTY
OF
ESSEX :
Be
it
remembered, that on April 19, 2006, before me, a Notary Public of New York,
personally appeared Xxxxxx Xxxxx-Xxxxx, who, I am satisfied, is the Vice
President of The Bank of New York, one of the corporations named in the
foregoing deed or instrument, and I having first made known to him the contents
thereof, he acknowledged that he had signed the same as such officer for and
on
behalf of such corporation, that the same was made by such corporation as its
voluntary act and deed, and sealed with its corporate seal, by virtue of
authority of its board of directors. All of which is hereby
certified.
/s/
Notary
Public of New
Jersey
My
Commission
Expires:
PHILA1\2458073\5 184120.000
9
SCHEDULE
A
The
Twenty-Fourth Supplemental Indenture was recorded as follows:
|
County
|
Date
of Recordation
|
Book
|
Page
|
|
New
Jersey:
|
|||
|
Atlantic
|
9/30/05
|
12151
|
1189
|
|
Burlington
|
9/30/05
|
10589
|
541
|
|
Camden
|
9/30/05
|
7962
|
1984
|
|
Cape
May
|
9/30/05
|
4219
|
429
|
|
Cumberland
|
9/30/05
|
3762
|
237
|
|
Gloucester
|
9/30/05
|
9053
|
221
|
|
Salem
|
9/30/05
|
1942
|
240
|
PHILA1\2458073\5 184120.000
10
