Exhibit 4.2
SECOND SUPPLEMENT
TO INDENTURE OF TRUST, DATED AS OF OCTOBER 1, 1998
THIS SECOND SUPPLEMENT TO INDENTURE OF TRUST, dated as of July 5,
2000, (this "Second Supplement") between SOUTH JERSEY GAS COMPANY, a corporation
organized and existing under the laws of the State of New Jersey (the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the "Trustee") under the Indenture of Trust hereinafter mentioned.
WITNESSETH
WHEREAS, the Company has heretofore duly executed, acknowledged and
delivered to the Trustee, a certain Indenture of Trust, dated as of October 1,
1998 (the "Original Indenture," as supplemented by the First Supplement dated as
of June 29, 2000, and as further supplemented by this Second Supplement, the
"Indenture") to provide for the issuance of its Secured Medium Term Notes; and
WHEREAS, the Company desires to make provisions for the issuance and
sale of its Secured Medium Term Notes to be issued under the Indenture, which
notes may, at the election of the Company as set forth in a Company Order, be
subject to redemption at the request of the representatives of deceased
noteholders, under certain conditions (the "RHO Notes"); and
WHEREAS, the Company desires to supplement the provisions of the
Original Indenture to provide for such redemptions; and
WHEREAS, the execution and delivery of this Second Supplement have
been duly authorized by the Offering Committee of the Board of Directors of the
Company at a meeting duly called and held according to 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 the RHO Notes, when
executed by the Company and authenticated by the Trustee as provided in the
Indenture, valid, binding and legal obligations of the Company, and to make this
Second Supplement 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 SECOND SUPPLEMENT TO INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the RHO
Notes are to be authenticated, issued and delivered and in consideration of the
premises and of the purchase and acceptance of the RHO Notes by the Noteholders
thereof and the sum of One Dollar duly paid to it by the Trustee at the
execution of this Second Supplement, the receipt whereof is hereby acknowledged,
the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Noteholders from time to time of RHO
Notes, as follows
(Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in the Indenture):
ADDITIONAL DEFINITIONS
SECTION 1.1 DEFINITIONS
For purposes of this Second Supplement, the following terms shall have the
following meanings:
BENEFICIAL OWNER
The term "Beneficial Owner" shall mean the person who has the right to
sell, transfer or otherwise dispose of an interest in RHO Notes and the right to
receive the proceeds therefrom, as well as the interest and principal payable to
the Noteholder thereof.
PARTICIPANT
The term "Participant" shall mean one of the participating organizations
for which the Depository holds the Global Note.
ARTICLE TWO
ADDITIONAL REDEMPTION PROVISIONS
SECTION 2.1 GENERAL
Notwithstanding any provisions of the Original Indenture (including,
without limitation, Article Three thereof) any Notes designated as RHO Notes in
a Company Order with respect to such Notes shall also be subject to redemption
in the manner and to the extent provided in this Article Two, except as the
specific terms of Article Two may be modified in the Company Order with respect
to such Notes.
SECTION 2.2 REDEMPTION AT THE HOLDER'S OPTION
(a) A determination of beneficial ownership in the RHO Notes will be
determined by the Company, in its sole discretion, which determinations shall be
final and binding on all parties.
(b) Unless the RHO Notes have been declared due and payable prior to their
maturity by reason of an Event of Default, the personal representative or other
Person authorized to represent the estate of the deceased Beneficial Owner or
from a surviving joint tenant(s) or tenant(s) by the entirety (each, a
"Representative") of a deceased Beneficial Owner has the right to request
redemption prior to the maturity of all or part of such interest, expressed in
integral multiples of $1,000 principal amount, in the RHO Notes, and the Company
will redeem the same subject to the limitations that the Company will not be
obligated to redeem, during the period
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from the Original Issue Date through and including the first anniversary of the
Original Issue Date or such other period as set forth in the Company Order with
respect to such Notes (the "Initial Period"), and during any twelve-month period
which ends on and includes each anniversary date thereafter or such other period
as set forth in the Company Order with respect to such Notes (each such period
being hereinafter referred to as a "Subsequent Period") on behalf of a deceased
Beneficial Owner, (1) any ownership interest in RHO Notes which exceeds the
aggregate principal amount set forth in the Company Order for such Notes (the
"Individual Limitation"); or (2) ownership interests in RHO Notes for all
Representatives of deceased Beneficial Owners so requesting redemption in an
aggregate principal amount exceeding the amount set forth in the Company Order
for such Notes (the "Aggregate Limitation").
(c) A request for redemption in the form attached as Schedule I hereto may
be initiated by the Representative of a deceased Beneficial Owner at any time
and in any principal amount in integral multiples of $1,000. Representatives of
deceased Beneficial Owners must make arrangements with the Participant through
whom such interest is owned in order that timely presentation of redemption
requests can be made by the Participant to the Trustee. If the Company,
although not obligated to do so, chooses to redeem interests of any deceased
Beneficial Owner in the RHO Notes in the Initial Period or in any Subsequent
Period in excess of the applicable Individual Limitation, such redemption, to
the extent that it exceeds the Individual Limitation for any deceased Beneficial
Owner, shall not be included in the computation of the Aggregate Limitation for
such Initial Period or such Subsequent Period, as the case may be, or for any
succeeding Subsequent Period. Any RHO Notes (or portion thereof) tendered
pursuant to a redemption request may be withdrawn by a written request by the
Representative received by the Trustee at least ten (10) days prior to its
repayment.
(d) Subject to the Individual Limitation and the Aggregate Limitation, the
Company will, after the death of any Beneficial Owner, redeem the interest of
the Beneficial Owner in the RHO Notes within 60 days following receipt by the
Trustee of a redemption request . The Trustee will notify the Company promptly
after receipt of any redemption request and the Company will provide all funds
necessary for such redemption prior to the date of redemption to the Trustee.
If, during the Initial Period or any Subsequent Period, redemption requests
exceed the applicable Aggregate Limitation required to be redeemed, then such
excess redemption requests will be applied to successive Subsequent Periods,
regardless of the number of Subsequent Periods required to redeem such
interests. All Redemption Requests will be redeemed in the order in which the
Trustee receives the Redemption Requests, subject to the Individual Limitation
and Aggregate Limitation.
(e) To obtain repayment pursuant to a redemption request, the
Representative must provide to the Participant (i) a written request for
repayment signed by the Representative, and such signature must be guaranteed by
a member firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc. ("NASD") or a commercial bank or trust
company having an office or correspondent in the United States, (ii) appropriate
evidence satisfactory to the Company and the Trustee that (1) the Representative
has authority to act on behalf of the deceased Beneficial Owner, (2) the death
of such Beneficial Owner has occurred and (3) the deceased was the owner of a
beneficial interest in such RHO Notes at the time of death, (iii) if applicable,
a properly executed assignment or endorsement, and (iv) if the
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beneficial interest in such RHO Notes is held by a nominee of the deceased
Beneficial Owner, a certificate satisfactory to the Trustee from such nominee
attesting to the deceased's ownership of a beneficial interest in such RHO
Notes. The Participant will provide these documents to the Trustee. All
questions as to the eligibility or validity of any exercise of redemption on
behalf of a deceased Beneficial Owner will be determined by the Company, in its
sole discretion, which determinations will be final and binding on all parties.
(f) For purposes of this Article Two, an interest in RHO Notes held in
tenancy by the entirety, joint tenancy or by tenants in common will be deemed to
be held by a single Beneficial Owner and the death of a tenant by the entirety,
joint tenant or tenant in common will be deemed the death of a Beneficial Owner.
The death of a Person who, during his lifetime, was entitled to substantially
all of the rights of a Beneficial Owner of an interest in the RHO Notes will be
deemed the death of the Beneficial Owner, regardless of the recordation of such
interest on the records of the Participant, if such rights can be established to
the satisfaction of the Participant, if any, and the Company.
(g) In the case of any redemption request which is presented pursuant to
this Article Two and which has not been fulfilled at the time the Company gives
notice of its election to partially redeem RHO Notes pursuant to the Article
Three of the Original Indenture, such interest or portion thereof shall not be
subject to redemption pursuant to such Article Three, but shall remain subject
to redemption pursuant to this Article Two.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 EFFECT ON INDENTURE
As supplemented by the Second Supplement, the Indenture is in all respects
ratified and confirmed, and the Indenture, including the First Supplement and
the Second Supplement, shall be read as one instrument.
SECTION 3.2 COUNTERPARTS
The Second Supplement may be executed in several counterparts, each of
which shall be considered an original and all collectively as one and the same
instrument.
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IN WITNESS WHEREOF, South Jersey Gas Company has caused this Second
Supplement to the Indenture to be signed and acknowledged by one of its Vice
Presidents and attested by its Secretary, and The Bank of New York has caused
this Indenture to be signed by one of its authorized signatories, as of the day
and year first written above.
SOUTH JERSEY GAS COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Senior Vice President,
Finance and Rates
ATTEST: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Assistant Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
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Schedule I
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FORM OF REQUEST FOR REDEMPTION
SOUTH JERSEY GAS COMPANY
Secured Medium Term Note, Series A
(_____% Secured Medium Term Notes due _______)
CUSIP No.________________________
The undersigned Participant does hereby certify, pursuant to Section
2.2(c) of the Second Supplement to Indenture dated as of July 5, 2000 to the
Indenture dated as of October 1, 0000 xxxxxxx Xxxxx Xxxxxx Gas Company (the
"Company") and The Bank of New York, as trustee (the "Trustee"), to the Company
and the Trustee that:
I. [Name of deceased Beneficial Owner] is deceased.
II. [Name of deceased Beneficial Owner] had an interest in $ in face principal
amount of the Company's Secured Median Term Note, Series A, Series ________
(also known as ________ Notes) due _______ (the "Notes").
III. [Name of Representative] is [Beneficial Owner's personal
representative/other person authorized to represent the estate of the
Beneficial Owner/surviving joint tenant/surviving tenant by the entirety]
of [Name of deceased Beneficial Owner] and has delivered to the undersigned
a request for redemption in form satisfactory to the undersigned,
requesting that $ [$1,000 or an integral multiple thereof] be redeemed
pursuant to said Section 2.2(c). Such request and the documents
accompanying such request, all of which are satisfactory to the
undersigned, are delivered herewith.
IV. [Name of Participant] holds the interest in the Notes with respect to which
this Request for Redemption is being made on behalf of [Name of deceased
Beneficial Owner].
IN WITNESS WHEREOF, the undersigned has executed this Request for
Redemption as of ___________________, _____.
[Name of Participant]
By:________________________________
Name:______________________________
Title:_____________________________
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