Exhibit (4)(b)(xviv)
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This instrument was prepared by
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, Esquire
MORTGAGE
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SOUTH JERSEY GAS COMPANY
TO
THE BANK OF NEW YORK,
Trustee
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TWENTY-FIRST SUPPLEMENTAL INDENTURE
Dated as of March 1, 1997
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Providing for the Issuance of First Mortgage Bonds,
7.70% Series due 2027
and
Further Supplementing and Amending the Indenture of Mortgage
Dated October 1, 1947
------------------------------
(This Instrument Contains After-Acquired Property Provisions)
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THIS TWENTY-FIRST SUPPLEMENTAL INDENTURE dated as of March 1,
0000 xxxxxxx XXXXX XXXXXX GAS COMPANY, a New Jersey
corporation, with principal offices at Number One 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 Xxxxx Xxxx
Xxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000, 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 a First Supplemental Indenture
dated as of October 1, 1952, a Second Supplemental Indenture
dated as of February 1, 1961, a Third Supplemental Indenture
dated as of July 1, 1963, a Fourth Supplemental Indenture dated
as of August 1, 1966, a Fifth Supplemental Indenture dated as of
September 1, 1968, a Sixth Supplemental Indenture dated as of
July 1, 1969. a Seventh Supplemental Indenture dated as of July
1, 1971, an Eighth Supplemental Indenture dated as of June 1,
1973, a Ninth Supplemental Indenture dated as of July 1, 1974, a
Tenth Supplemental Indenture dated as of November 10, 1976, an
Eleventh Supplemental Indenture dated as of December 1, 1979, a
Twelfth Supplemental Indenture dated as of June 1, 1980, a
Thirteenth Supplemental Indenture dated as of August 1, 1981 a
Fourteenth Supplemental Indenture dated as of August 1, 1984, a
Fifteenth Supplemental Indenture dated as of July 1, 1986, a
Sixteenth Supplemental Indenture dated as of April 1, 1988, a
Seventeenth Supplemental Indenture dated of as May 1, 1989, an
Eighteenth Supplemental Indenture dated of March 1, 1990, a
Nineteenth Supplemental Indenture dated as of April 1, 1992 and
a Twentieth Supplemental Indenture dated as of June 1, 1993
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(hereinafter called, respectively, the "First Supplement," the
"Second Supplement," the "Third Supplement," the "Fourth
Supplement," the "Fifth Supplement," the "Sixth Supplement," the
"Seventh Supplement," the "Eighth Supplement," the "Ninth
Supplement," the "Tenth Supplement," the "Eleventh Supplement,"
the "Twelfth Supplement," the "Thirteenth Supplement," the
"Fourteenth Supplement," the "Fifteenth Supplement," the
"Sixteenth Supplement," the "Seventeenth Supplement," the
"Eighteenth Supplement," the "Nineteenth Supplement" and the
"Twentieth Supplement") (the Original Indenture, all such
supplemental indentures and the Twenty-First Supplemental
Indenture being hereinafter collectively referred to as the
"Indenture"), pursuant to which the Company provided for the
creation of a second series of Bonds designated as "South Jersey
Gas Company First Mortgage Bonds, 3 7/8% Series due 1977"
(herein and in the First Supplement sometimes called the "Bonds
of the Second Series"), a third series of Bonds designated as
"South Jersey Gas Company First Mortgage Bonds, 5% Series due
1986" (herein and in the Second Supplement sometimes called the
"Bonds of the Third Series"), a fourth series of Bonds
designated as "South Jersey Gas Company First Mortgage Bonds, 4
1/2% Series due 1988" (herein and in the Third Supplement
sometimes called the "Bonds of the Fourth Series"), a fifth
series of Bonds designated as "South Jersey Gas Company First
Mortgage Bonds, 5.70% Series due 1991" (herein and in the Fourth
Supplement sometimes called the "Bonds of the Fifth Series"), a
sixth series of Bonds designated as "South Jersey Gas Company
First Mortgage Bonds, 7% Series due 1993" (herein and in the
Fifth Supplement sometimes called the "Bonds of the Sixth
Series"), a seventh series of Bonds designated as "South Jersey
Gas Company First Mortgage Bonds, 7 7/8% Series due 1994"
(herein and in the Sixth Supplement sometimes called the "Bonds
of the Seventh Series"), an eighth series of Bonds designated as
"South Jersey Gas Company First Mortgage Bonds, 8 1/4% Series
due 1996" (herein and in the Seventh Supplement sometimes called
the "Bonds of the Eighth Series"), a ninth series of Bonds
designated as "South Jersey Gas Company First Mortgage Bonds, 8
1/4% Series due 1998" (herein and in the Eighth Supplement
sometimes called the "Bonds of the Ninth Series"), a tenth
series of Bonds designated as "South Jersey Gas Company First
Mortgage Bonds, 9 1/2% Series due 1989" (herein and in the Ninth
Supplement sometimes called the "Bonds of the Tenth Series"), an
eleventh series of Bonds designated as "South Jersey Gas Company
First Mortgage Bonds, 8% Series due 1995" (herein and in the
Twelfth Supplement sometimes called the "Bonds of the Eleventh
Series"), a twelfth series of Bonds designated as "South Jersey
Gas Company First Mortgage Bonds, 15 3/4% Series due 1996"
(herein and in the Thirteenth Supplement sometimes called the
"Bonds of the Twelfth Series"), a thirteenth series of Bonds
designated as "South Jersey Gas Company First Mortgage Bonds, 14
3/8% Series due 1996" (herein and in the Fourteenth Supplement
sometimes called the "Bonds of the Thirteenth Series"), a
fourteenth series of Bonds designated as "South Jersey Gas
Company First Mortgage Bonds, 9.20% Series due 1998" (herein and
in the Fifteenth Supplement sometimes called the "Bonds of the
Fourteenth Series"), a fifteenth series of Bonds designated as
"South Jersey Gas Company First Mortgage Bonds, 10 1/4% Series
due 2008" (herein and in the Sixteenth Supplement sometimes
called the "Bonds of the Fifteenth Series"), a sixteenth series
of Bonds designated as "South Jersey Gas Company First Mortgage
Bonds, 9% Series due 2010" (herein and in the Eighteenth
Supplement sometimes called the "Bonds of the Sixteenth
Series"), a seventeenth series of Bonds designated as "South
Jersey Gas Company First Mortgage Bonds, 8.19% Series due 2007"
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(herein and in the Nineteenth Supplement sometimes called the
"Bonds of the Seventeenth Series") and an eighteenth series of
Bonds due 2013 (herein and in the Twentieth Supplement sometimes
called the "Bonds of the Eighteenth Series"); and
Whereas, pursuant to the Indenture there have been executed,
authenticated and issued, and there are outstanding as of the
date of execution hereof by the Company, First Mortgage Bonds of
series and in principal amounts as follows:
Series Issued Now Outstanding
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Bonds of the Initial Series $4,000,000 -0-
Bonds of the Second Series $4,500,000 -0-
Bonds of the Third Series $4,500,000 -0-
Bonds of the Fourth Series $5,000,000 -0-
Bonds of the Fifth Series $5,000,000 -0-
Bonds of the Sixth Series $6,000,000 -0-
Bonds of the Seventh Series $6,000,000 -0-
Bonds of the Eighth Series $4,000,000 -0-
Bonds of the Ninth Series $6,000,000 -0-
Bonds of the Tenth Series $6,000,000 -0-
Bonds of the Eleventh Series $1,000,000 -0-
Bonds of the Twelfth Series $20,000,000 -0-
Bonds of the Thirteenth Series $10,000,000 -0-
Bonds of the Fourteenth Series $20,000,000 -0-
Bonds of the Fifteenth Series $25,000,000 $25,000,000
Bonds of the Sixteenth Series $35,000,000 $28,437,500
Bonds of the Seventeenth Series $25,000,000 $25,000,000
Bonds of the Eighteenth Series $35,000,000 $35,000,000
; and
Whereas, said Bonds of the Fifteenth Series, Bonds of the
Sixteenth Series, Bonds of the Seventeenth Series and Bonds of
the Eighteenth Series constitute the only Bonds outstanding
under the Indenture; 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 create a new series of Bonds
to be issued under the Indenture, including this Twenty-First
Supplemental Indenture dated as of March 1, 1997 (hereinafter
called the "Twenty-First Supplement"), to be designated as
"South Jersey Gas Company First Mortgage Bonds, 7.70% Series due
2027 (hereinafter sometimes called the "Bonds of the Nineteenth
Series"), and has duly determined that the terms and form of the
Bonds of the Nineteenth Series, which will be fully registered
bonds, and the form of the Trustee's Certificate of
Authentication to be set forth on the Bonds of the Nineteenth
Series, shall be substantially as follows respectively:
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[FORM OF BOND]
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). BY ITS ACCEPTANCE OF
THIS BOND, THE HOLDER OF THIS BOND REPRESENTS THAT (1) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" OR A "QUALIFIED
INSTITUTIONAL BUYER" AS SUCH TERMS ARE DEFINED UNDER RULE 501(a)
AND RULE 144A OF THE SECURITIES ACT, RESPECTIVELY, AND (2) THIS
BOND IS BEING ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, EXCEPT IN THE CASE OF RESALES PURSUANT
TO RULE 144A OF THE SECURITIES ACT. PRIOR TO THE DATE WHICH IS
TWO YEARS AFTER THE ORIGINAL ISSUE DATE OF THIS BOND ("SECOND
ANNIVERSARY OF ISSUANCE"), NEITHER THIS BOND NOR ANY INTEREST
HEREIN MAY BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT EXCEPT (A) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS SUCH A "QUALIFIED
INSTITUTIONAL BUYER" IN A TRANSACTION COMPLYING WITH THE
REQUIREMENTS OF RULE 144A, OR (B) PURSUANT TO ANOTHER APPLICABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AND IN THE
CASE OF EITHER (A) OR (B) ABOVE, UNDER CIRCUMSTANCES WHICH WOULD
NOT RESULT IN A VIOLATION OF THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. PROSPECTIVE PURCHASERS ARE HEREBY NOTIFIED
THAT THE SELLER OF THIS BOND MAY BE RELYING ON THE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A. THE ISSUER OF THIS BOND
HAS AGREED THAT UNTIL THE SECOND ANNIVERSARY OF ISSUANCE IT WILL
FURNISH THE HOLDER OF THIS BOND AND PROSPECTIVE PURCHASERS
DESIGNATED BY THE HOLDER WITH THE INFORMATION ABOUT THE ISSUER
REQUIRED BY RULE 144(d) (4).
UNLESS THIS CERTIFICATE IF PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO SOUTH JERSEY GAS COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. $
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SOUTH JERSEY GAS COMPANY
FIRST MORTGAGE BOND, 7.70% SERIES DUE 0000
Xxxxx Xxxxxx Gas Company, a New Jersey corporation (hereinafter
called the "Company"), for value received, promises to pay on
April 1, 2027, to _____________________, 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 7.70% per annum (computed on the basis of a 360-day
year of twelve 30-day months) until payment of said principal
sum, such interest to be payable April 1 and October 1 in each
year, commencing October 1, 1997, and to pay on demand interest
at the rate of 7.70% per annum (computed on the basis of a
360-day year of twelve 30-day months) on any overdue principal
and, to the extent permitted by applicable law, on any overdue
interest, from the due date thereof until the obligation of the
Company with respect to the payment thereof shall be discharged.
All payments of principal (which term as used in this Bond
includes the Redemption Price below referred to if this Bond is
called for redemption) hereof and interest hereon shall be paid
at the corporate trust office of the Bank of New York
(hereinafter called the "Trustee"), or its successor as Trustee
under the indenture below mentioned, or at such other places as
the Company may agree pursuant to Section 2.7 of the
Twenty-First Supplement (as hereinafter defined), 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.
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-First Supplemental Indenture dated as of
March 1, 1997 (hereinafter called the "Twenty-First
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 of the 7.70% Series due 2027, of which this Bond is
one, are of similar tenor hereto, and are limited to the
aggregate authorized principal amount of $35,000,000, except as
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provided in Section 2.11 of the Original Indenture (relating to
replacement of mutilated, lost, destroyed or stolen Bonds).
The Bonds of this Series are entitled to the benefit of the
sinking fund provided for in Article II of the Twenty-First
Supplement, and all Bonds of all Series are entitled to the
benefit of the replacement fund provided for in the Indenture.
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 (a)
after February 29, 2012, and subject to any required approval of
the Board of Regulatory Commissioners of New Jersey, or any
successor agency, at the election of the Company upon payment of
an amount equal to the applicable percentage of the principal
amount thereof set forth in the tabulation below under the
heading "Redemption Price" during the respective periods set
forth in said tabulation:
Twelve Months' Period
Beginning April 1 Redemption Price
--------------------- ----------------
2012 102.00%
2013 101.60%
2014 101.20%
2015 100.80%
2016 100.40%
2017-27 100.00%
together with accrued interest to the date fixed for redemption,
(b) after February 29, 2012 by operation of said sinking fund
(as provided in Article II of the Twenty-First Supplement) upon
payment of the principal amount thereof together with accrued
interest to the date fixed for redemption, (c) through the
application of proceeds from the condemnation of property
subject to the lien of the Indenture, or proceeds of 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,
or (d) by any combination of (a), (b) and (c). Except as set
forth in this paragraph, the Bonds of this Series are not
subject to redemption.
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.
Bonds of this Series are issuable in denominations of $100,000
and any integral multiple of $1,000 larger than $100,000, except
that such Bonds may be issued in denominations of less than
$100,000 when necessary after a partial redemption.
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As more fully provided in the Indenture, any Bonds of this
Series, upon payment of the charges specified in the Indenture
and upon surrender at the corporate trust office of the Trustee,
may be exchanged for an equal aggregate principal amount of
Bonds of this Series of any of the authorized denominations.
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 in the Indenture provided) of at least 66 2/3% in principal
amount of the Bonds issued thereunder 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 of
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 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.
This Bond is transferable, but only as provided in the
Indenture and on payment of charges therein specified upon
surrender hereof, by the registered owner in person or by
attorney duly authorized in writing, at the corporate trust
office of the Trustee; upon any such transfer a new Bond similar
hereto will be issued to the transferee. The Company, the
Trustee 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 and the interest on this Bond and for all other
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purposes; and neither the Company nor the Trustee nor any paying
agent shall be affected by any notice to the contrary.
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.
Dated: _________, ______
SOUTH JERSEY GAS COMPANY
By: __________________________
President
[CORPORATE SEAL]
Attest:
______________________________
Secretary
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[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
; and
WHEREAS, the Company deems it advisable and has determined
pursuant to the provisions of the Original Indenture, to convey,
transfer and assign to the Trustee and to subject to the lien of
the Indenture with the same effect as though included in the
granting clauses of the Original Indenture certain additional
property now owned by the Company; and
WHEREAS, the execution and delivery of the Twenty-First
Supplement 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
the Bonds of the Nineteenth Series, when executed by the Company
and authenticated by the Trustee as in the Indenture provided,
valid, binding and legal obligations of the Company, and to make
the Twenty-First 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 TWENTY-FIRST SUPPLEMENT WITNESSETH, that
by way of further assurance and in consideration of the premises
and of the acceptance by the Trustee of the trusts hereby
created, and in order to secure further the payment of the
principal of, the premium, if any, 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 the covenants and conditions
contained in the Indenture and in said Bonds, the Company has
executed and delivered the Twenty-First Supplement, and has
granted, bargained, sold, conveyed, aliened, enfeoffed,
mortgaged, pledged, released, confirmed, assigned, transferred
and set over, and by these presents does grant, bargain, sell,
convey, alien, enfeoff, mortgage, pledge, release, confirm,
assign, transfer and set over unto the Trustee, its successors
in the trust and its and their assigns, the following described
property:
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1. All and singular its lands, real estate and any and every
interest in lands or real estate wheresoever situate.
2. All buildings, structures, machinery, apparatus and
equipment situate upon the premises referred to above or
appurtenant thereto or used in connection therewith, and all
property of the Company used or useful in and about the business
of manufacturing, transmitting and disposing of gas for light,
heat, power or other purposes and consisting of, inter alia, gas
works and plants, engines, furnaces, boilers, generators,
machinery, shafting, belting, retorts, tanks, condensers, pumps,
steam holders, gas holders, purifiers, scrubbers, tar
extractors, separators, dehydrators, pressure regulators,
blowers, compressors, motors, exhausters, tracks and sidings,
oil-gas generators, expansions tanks, gas mains, pipes, gas
transmissions systems, gas distribution systems, tunnels,
service pipes, pipe line fittings, gates, valves, connections,
implements, gas meters, lamps and all other appliances,
instruments, equipment, stores, repair parts and the like, now
owned by the Company, and all other property for similar uses
hereafter in any way acquired by the Company or to which it may
hereafter be entitled, it being hereby expressly agreed that any
and all personal property covered by the foregoing description,
whether or not located in or upon the real property of the
Company, shall be considered as fixtures and appurtenances
constituting part of the real property of the Company.
3. All easements, rights of way, rights, franchises, contracts,
permits, leases, licenses, privileges and appurtenances
belonging or in any way appertaining to the premises and
property hereinbefore referred to, or to any other property now
owned by the Company or hereafter acquired by it, and every part
thereof, or derived or acquired by the Company in any manner
whatsoever; and all the reversions, remainders, revenues, rents,
issues, and profits of all property at any time subject hereto
and all the estate, right, title, interest, property,
possession, claim, and demand whatsoever, as well at law as in
equity, of the Company, of, in, and to the same and every part
thereof.
4. All other property of whatever kind and description, whether
real or personal, now owned or which may at any time hereafter
be acquired by the Company, and whether or not specifically
described or referred to herein, excepting, however, all
materials and supplies consumable in the operation of the
properties of the Company, all merchandise and products
acquired, manufactured, produced, or held for sale in the usual
course of business, all automobiles and motor vehicles, and all
cash, accounts receivable, stocks, bonds, notes, and other
securities which are neither specifically pledged with the
Trustee nor required by any provision of the Indenture to be
pledged with the Trustee.
5. All money, securities, or property of any kind which may at
any time be paid, conveyed, assigned, transferred or delivered
to the Trustee by the Company or any other person, to be held
hereunder as additional security for all the Bonds, which money,
securities, or property the Trustee is hereby authorized to
receive and accept.
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UNDER AND SUBJECT to any excepted encumbrances of the character
defined in Subdivision A of Section 3.04 of the Original
Indenture.
TO HAVE AND TO HOLD the same unto the Trustee, its successors
and assigns, forever.
IN TRUST, nevertheless, for the benefit of the Trustee in
respect of all reasonable compensation due it hereunder and all
expenses and liabilities incurred by it pursuant hereto without
negligence or bad faith, and for the equal and ratable benefit
and security of the holders, present and future, of all Bonds at
any time issued and outstanding under the Indenture, and for the
enforcement of the payment thereof, when payable, and the
performance and observance of the covenants and conditions
contained in the Indenture, without preference, priority or
distinction (except as otherwise herein specifically provided),
of any one of such Bonds over any other of such Bonds by reason
of priority in issue or acquisition or otherwise, so that,
except as aforesaid, the principal (which term as used in this
Twenty-First Supplement where the context requires includes the
Redemption Price contained in the form of Bond hereinbefore set
forth in the recitals contained in the Twenty-First Supplement
if the Bond is called for redemption) of and interest on each
Bond at any time issued and outstanding under the Indenture
shall be equally and ratably secured hereby, as if all of such
Bonds had been executed, authenticated, delivered, sold, and
negotiated simultaneously with the execution and delivery
hereof; and it is hereby covenanted and declared that all Bonds
at any time issued and outstanding under the Indenture are to be
issued, authenticated, and delivered, and that the mortgaged
property is to be held by the Trustee, upon and subject to the
covenants, conditions, uses and trusts as in the Original
Indenture and in any supplemental indenture, including the
Twenty-First Supplement, contained;
PROVIDED, HOWEVER, and these presents are upon the condition
that if the Company, its successors or assigns, shall pay or
cause to be paid the principal of and interest on all said
Bonds, together with the premium, if any, payable on such of
said Bonds as may have been called for redemption prior to
maturity, or shall provide, as permitted by the Indenture, for
the payment thereof by depositing with the Trustee the entire
amount due or to become due thereon for principal, interest and
premium, if any, and if the Company shall also pay or cause to
be paid all other sums payable under the Indenture by it, then
the Indenture, including the Twenty-First Supplement, and the
estate and rights thereby granted shall cease, determine and be
void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and
between the Company and the Trustee for the benefit of those who
shall hold Bonds of the Nineteenth Series, or any of them, as
follows:
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ARTICLE I
DESCRIPTION OF BONDS OF THE NINETEENTH SERIES
The Bonds of the Nineteenth Series shall be designated as
"South Jersey Gas Company First Mortgage Bonds, 7.70% Series due
2027," and shall be issuable as fully registered Bonds,
substantially in the form hereinbefore recited, but they may
bear and contain such legends and modifications as may be
required by law or as may be necessary to comply with
requirements of any stock exchange or of any regulatory board,
body or official. Except as provided in Section 2.11 of the
Original Indenture, the aggregate principal amount of Bonds
authorized by the Twenty-First Supplement is limited to
$35,000,000, and except as aforesaid, and except for exchanges
and transfers, the Company shall not execute and the Trustee
shall not authenticate or deliver Bonds of the Nineteenth Series
in excess of such aggregate principal amount.
Except as otherwise provided in Section 2.11 of the Original
Indenture, Bonds of the Nineteenth Series shall be dated and
shall bear interest from the April 1 or October 1 next preceding
the date of authentication thereof by the Trustee, except that
if the authentication date is an interest payment date, such
Bonds shall be dated, and shall bear interest from, the
authentication date; provided, however, that if upon
authentication of any Bonds of the Nineteenth Series upon the
transfer or in exchange for other such Bonds or under Section
2.6 of the Twenty-First Supplement, interest on the Bonds of the
Nineteenth Series shall be in default, the date from which such
Bond shall bear interest shall be the date to which interest
shall have been paid upon the Bonds transferred or surrendered
in exchange for the Bond so authenticated; and provided further,
however, that in the case of the authentication of Bonds of the
Nineteenth Series upon an original issue hereunder, such Bonds
may be dated the date of authentication thereof and in such case
shall bear interest from such date of authentication.
Bonds of the Nineteenth Series shall mature April 1, 2027, and
shall bear interest on the unpaid principal amount thereof at
the rate of 7.70% per annum (computed on the basis of a 360-day
year of twelve 30-day months), payable on April 1 and October 1
in each year, commencing October 1, 1997, and shall bear
interest payable on demand at the rate of 7.70% per annum
(computed on the basis of a 360-day year of twelve 30-day
months) on any overdue principal and, to the extent permitted by
applicable law, on any overdue interest, from the due date
thereof, until the obligation of the Company with respect to the
payment thereof shall be discharged. All payments of principal
and interest shall be made at the corporate trust office of The
Bank of New York or its successor as Trustee under the
Indenture, or at such other places as the Company may agree
pursuant to Section 2.7 of the Twenty-First Supplement, 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.
Bonds of the Nineteenth Series shall be issuable in
denominations of $100,000 and in any integral multiple of $1,000
larger than $100,000; provided, however, that such Bonds may be
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issued in denominations of less than $100,000 when necessary to
satisfy the requirements of Section 2.6 of the Twenty-First
Supplement. Each Bond of such Series, and each of the
authorized denominations, shall bear such appropriate
distinguishing numbers and letters as may be adopted by the
Company.
Except as provided below, Bonds of the Nineteenth Series shall
be transferable and exchangeable as to denominations and
registered name upon the same terms and conditions as are
applicable under Section 2.10 of the Original Indenture to fully
registered Bonds of the Initial Series.
The Bonds of the Nineteenth Series may be presented to the
Trustee in exchange for a global Bond in an aggregate principal
amount equal to the aggregate principal amount of all
outstanding Bonds of the Nineteenth Series (a "Global Bond"), to
be registered in the name of a depository (the "Depository")
which may include The Depository Trust Company, or its nominee,
and delivered by the Trustee to the Depository for crediting to
the accounts of its participants pursuant to the instructions of
the Trustee. The Company upon any such presentation shall
execute a Global Bond in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery
in accordance with the Original Indenture and this Twenty-First
Supplemental Indenture. Payments on the Bonds of the Nineteenth
Series issued as a Global Bond will be made to the Depository.
A Global Bond may be transferred, in whole but not in part,
only to another nominee of the Depository, or to a successor
Depository selected or approved by the Company or to a nominee
of such successor Depository.
If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if any time the
Depository for such series shall no longer be registered or in
good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a
successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such condition as the case may be, the Company
will execute, and the Trustee, upon written notice from the
Company, will authenticate and deliver the Bonds of the
Nineteenth Series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Bond in
exchange for such Global Bond. In addition, the Company may at
any time determine that the Bonds of the Nineteenth Series shall
no longer be represented by a Global Bond. In such a event the
Company will execute, and the Trustee, upon receipt of an
Officer's Certificate evidencing such determination by the
Company, will authenticate and deliver the Bonds of the
Nineteenth Series in definitive registered form without coupons,
in authorized denominations, and in aggregate principal amount
equal to the principal amount of the Global Bond in exchange
for such Global Bond. Upon the exchange of the Global Bond for
such Bonds of the Nineteenth Series in definitive registered
form without coupons, in authorized denominations, the Global
Bond shall be canceled by the Trustee. Such Bonds of the
Nineteenth Series in definitive registered form issued in
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exchange for the Global Bond shall be registered in such name
and in such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants or
otherwise, shall in writing, instruct the Trustee. The Trustee
shall deliver such Bonds to the Depository for delivery to the
persons in whose names such Bonds are so registered.
ARTICLE II
REDEMPTION OF AND SINKING FUND FOR
BONDS OF THE NINETEENTH SERIES
SECTION 2.1. Bonds of the Nineteenth Series shall be subject
to redemption, either as a whole or in part from time to time:
(a) after February 29, 2012, and subject to any required
approval of the Board of Public Utilities of New Jersey (the
"New Jersey BPU"), or any successor agency, at the election of
the Company upon payment of an amount equal to the applicable
percentage of the principal amount thereof specified under the
heading "Redemption Price" in the tabulation contained in the
form of Bond hereinbefore set forth in the recitals in the
Twenty-First Supplement;
(b) after February 29, 2012, upon payment of the principal
amount thereof, through the operation of the sinking fund for
the Bonds of the Nineteenth Series provided for in Section 2.2
of the Twenty-First Supplement;
(c) upon payment of the principal amount thereof through
the application pursuant to Subdivision C of Section 6.07 of the
Original Indenture of proceeds from the condemnation of property
subject to the lien of the Indenture, or proceeds of sale of
such property to a governmental body or agency having the power
of eminent domain made as a result of the threat (evidenced in
writing by such body or agency) or condemnation of such
property, but not through the application of money from any
other source; or
(d) by any combination of clauses (a), (b) and (c);
together in each case with accrued interest to the date fixed
for redemption. Except as set forth in this Section 2.1, the
Bonds of the Nineteenth Series are not subject to redemption.
SECTION 2.2. As further security for the Bonds of the
Nineteenth Series and to create and maintain a sinking fund
(herein referred to as the "sinking fund") for the benefit
thereof, the Company covenants to pay in cash, so long as any of
the Bonds of the Nineteenth Series remain outstanding, to the
Trustee, on or before April 1 of each year, commencing April 1,
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2012, and continuing to and including April 1, 2026, the sum of
$2,187,500. For purposes of this Section 2.2, any redemption of
less than all of the Bonds of the Nineteenth Series pursuant to
Section 2.1 of the Twenty-First Supplement shall be applied to
principal payments in inverse order of their scheduled maturity.
The Trustee shall select for redemption, in the manner set
forth in Section 2.5 of the Twenty-First Supplement, such
principal amount of Bonds of the Nineteenth Series as the amount
of such sinking fund payment to be paid in cash on or before the
next succeeding April 1 shall be sufficient to redeem. The
Trustee shall certify to the Company the numbers of the Bonds
selected and the portion of the principal amount of each Bond
that is to be redeemed.
The Trustee shall, not more than 60 nor less than 30 days in
advance of such April 1, give, in the name of the Company,
written notice that Bonds of the Nineteenth Series bearing the
serial number specified have been called for redemption through
the sinking fund, that they will be due and payable on such
April 1 at the corporate trust office of the Trustee at a stated
amount which shall be the principal amount thereof, together
with accrued interest to said date, and that all interest
thereon will cease to accrue after said date (unless the Company
shall default in making such payment on said date). Such notice
of redemption shall be given to the registered owners of Bonds
which, or portions of which, are to be redeemed by mailing the
same to such registered owners, at their respective addresses as
the same appear on the registry books kept in accordance with
Section 2.10 of the Original Indenture.
SECTION 2.3. The election of the Company to redeem any
of the Bonds of the Nineteenth Series, other than through the sinking
fund above provided for, shall be evidenced by a resolution of
its Board of Directors calling all or a stated principal amount
thereof for redemption on a stated date. At least 40 days prior
to such redemption date (or at such later time as shall be
satisfactory to the Trustee), the Company shall file with the
Trustee a certified copy of such resolution. The Company shall
on or before such redemption date deposit with the Trustee the
total redemption price of all Bonds so called, with accrued
interest thereon to the redemption date.
If the Company elects to redeem less than all of the Bonds of
the Nineteenth Series, the particular Bonds to be redeemed shall
be selected by the Trustee in the manner set forth in Section
2.5 of the Twenty-First Supplement from the Bonds of the
Nineteenth Series then outstanding. The Trustee shall certify
to the Company the numbers of the Bonds selected and the portion
of the principal amount of each Bond that is to be redeemed.
The Trustee shall, not more than 60 nor less than 30 days in
advance of such redemption date, give, in the name of the
Company, written notice that Bonds of the Nineteenth Series
bearing the serial numbers specified have been called for
redemption, that they will be due and payable on such redemption
date at the corporate trust office of the Trustee at a stated
amount (which shall be the applicable redemption price), and
that all interest thereon will cease to accrue after said date
(unless the Company shall default in payment of the amount
necessary to effect such redemption). If all the Bonds of the
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Nineteenth Series be called, the notice shall so state and may
omit the numbers thereof. The notice shall state that the Bonds
will be payable at the stated redemption price, plus accrued
interest to the redemption date. If the redemption date is an
interest payment date, the notice may state that the interest
payment due on such date will be paid in the usual manner. Such
notice of redemption shall be given to the registered owners of
Bonds which, or portions of which, are to be redeemed by mailing
the same to such registered owners, at their respective
addresses as the same appear on the aforementioned registry
books.
Before any money shall be applied by the Trustee to the
redemption of Bonds under this Section, the Company shall
deliver to the Trustee a certificate of the President or a Vice
President of the Company stating that all conditions precedent
provided for herein (including compliance with all applicable
covenants) relating to such redemption have been complied with.
SECTION 2.4. Each Bond so called for redemption under either
Section 2.2 or Section 2.3 shall be due and payable at the
places and price and on the date specified in such notice.
Subject to any agreement entered into pursuant to Section 2.7,
beginning on the date when each Bond shall be due and payable as
aforesaid, the holder thereof may present the same for
redemption, in negotiable form, and the Trustee shall, out of
the money deposited with it under the provisions of this
Article, cause the same to be paid and redeemed; after said date
(unless upon such presentation on or after the due date the
Trustee shall have refused or failed to make such payment) all
further interest shall cease to accrue thereon. In any case
where the redemption date is an interest payment date, the
interest payment due on such date on Bonds called for redemption
may be paid in the usual manner.
SECTION 2.5. Whenever less than all of the outstanding Bonds
of the Nineteenth Series are to be redeemed, the principal
amount of Bonds of the Nineteenth Series to be redeemed, shall
be prorated among the holders of the Bonds of the Nineteenth
Series in the proportion, as nearly as practicable, that their
respective holdings bear to the aggregate principal amount of
Bonds of the Nineteenth Series outstanding on the date of
selection. In making any proration pursuant to this provision,
the Trustee may make such adjustment as it may determine, with
the approval of the Company, to the end that the principal
amount prorated to each holder of Bonds shall be in each
instance $1,000 or an integral multiple thereof.
SECTION 2.6. If only a part of any fully registered Bond
shall be selected by the Trustee in the manner set forth in Section
2.5 of the Twenty-First Supplement, the notice of redemption
hereinbefore provided for shall specify the distinctive number
of such Bond and the portion of the principal amount thereof to
be redeemed. Upon surrender of such Bond for partial redemption
and upon payment of the portion so called for redemption, a new
Bond or Bonds of the Nineteenth Series, in aggregate principal
amount equal to the unredeemed portion of such surrendered Bond,
shall be executed by the Company, authenticated by the Trustee,
and delivered to the registered owner thereof, without expense
to such holder.
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SECTION 2.7. The Company may enter into an agreement with
the registered owners of any Bond of the Nineteenth Series (or
prospective registered owner of any such Bond) providing for the
payment without the surrender of such Bond to such registered
owner (or to such prospective registered owner, upon becoming a
registered owner of any such Bond) of the principal of and the
premium, if any, and interest on such Bond or any part thereof
at a place other than the offices or agencies therein specified,
and for the making of notation as to principal payments, if any,
on such Bond by such registered owner or by any agent of the
Company or of the Trustee. A copy of any such agreement shall
be filed with the Trustee. The Trustee is authorized to approve
any such agreement, and shall thereafter make all payments on
such Bond as provided in such agreement. The Trustee shall not
be liable for any act or omission to act on the part of the
Company, any such registered owner or any agent of the Company
in connection with any such agreement.
SECTION 2.8. So long as any of the Bonds of the Nineteenth
Series shall remain outstanding, upon any application by the
Trustee of funds from sources described in Section 2.1 (c) of
the Twenty-First Supplement to the redemption of Bonds pursuant
to Subdivision C of Section 6.07 of the Original Indenture, if
less than all Bonds of all Series then outstanding are to be
redeemed, a principal amount of Bonds of the Nineteenth Series
shall be redeemed by the application of a portion of such funds,
such portion to be determined by multiplying the total amount of
such funds so to be applied by a fraction the numerator of which
shall be the aggregate amount required for the redemption,
pursuant to Subdivision C of Section 6.07 (exclusive of accrued
interest, if any), of all of the Bonds of the Nineteenth Series
outstanding on the date of the selection for such redemption and
the denominator of which shall be the aggregate amount required
for the redemption, pursuant to such Subdivision C of Section
6.07 (exclusive of accrued interest, if any), of all of the
Bonds of all Series outstanding on such date; provided, however,
that nothing in this Section 2.8 shall restrict the manner (pro
rata, by lot or otherwise) by which the remaining balance of
such funds shall be applied to the redemption of Bonds of any
Series other than the Nineteenth Series.
SECTION 2.9. Bonds paid or retired by the use of any money
subject to the lien of the Indenture, or by the operation of the
sinking fund provided for in this Article II, or by the
operation of any replacement, purchase, or other analogous fund,
or made the basis of a credit against the obligations of the
Company under any sinking, replacement, purchase, or other
analogous fund, may thereafter be made the basis of the
authentication of a like principal amount of Bonds of any Series
under the provisions of Section 3.06 of the Original Indenture.
SECTION 2.10. To the extent the Company shall elect to include
the same, the principal amount of Bonds redeemed by the
operation of the sinking fund provided for in this Article II
(whether through mandatory sinking fund payments or voluntary
sinking fund payments) shall be included among the Bonds
purchased, paid or otherwise acquired or retired by the Company
specified in Section 5.19(A)(3) of the Original Indenture.
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ARTICLE III
ADDITIONAL COVENANTS OF THE COMPANY
SECTION 3.1. So long as any Bonds of the Nineteenth Series
shall remain outstanding, the Company will not declare or pay
any dividend on any shares of its Common Stock (other than
dividends payable in shares of its Common Stock) or make any
distribution on such shares, or purchase or otherwise acquire
any such shares (except shares acquired without cost to the
Company), or advance any amount to or invest any amount in the
property, securities or indebtedness of, or guarantee any
indebtedness of, any subsidiary if, after giving effect to such
action, the sum of the aggregate amounts so declared, paid,
distributed, purchased, acquired, advanced, invested or
guaranteed after December 31, 1996 would exceed the aggregate
net income of the Company available for dividends on its Common
Stock earned after such date plus the sum of $51,000,000. For
the purposes of this Section 3.1, "subsidiary" shall mean any
corporation directly or indirectly controlled by or under common
control with the Company.
For the purpose of calculating the requirements of this
Section, the net income of the Company available for dividends
on its Common Stock shall be determined in accordance with such
system of accounts as may be prescribed by any governmental
authority having jurisdiction in the premises or in the absence
thereof in accordance with generally accepted accounting
principles as in effect at such time; provided, however, that
(a) the deductions for depreciation or renewal or replacement
reserves in respect of each year shall be the amount taken
therefor on the accounts of the Company or the amount required
to be stated in item (1) of the Replacement Fund Certificate to
be filed under Section 5.19 of the Original Indenture with
respect to the period ending at the close of such year,
whichever be greater, and (b) no deduction or adjustment shall
be made from gross income for or in respect of (i) expenses in
connection with the redemption or retirement of any securities
issued by the Company, including any amount paid in excess of
the principal or par or stated value of securities redeemed or
retired, and, if such redemption or retirement is effected with
the proceeds of sale of other securities of the Company,
interest on the securities redeemed or retired from the date on
which the funds required for such redemption or retirement shall
be deposited in trust for such purpose to the date of such
redemption or retirement, (ii) profits or losses from sales of
capital assets or taxes in respect of such profits, (iii) any
adjustments to retained earnings (including tax adjustments)
applicable to any period prior to January 1, 1997, (iv) charges
for the write-off of unamortized debt discount and expense
carried on the books of the Company at December 31, 1996, or (v)
charges for the write-off or write-down of the amount at which
any property of the Company was carried on its books at December
31, 1996, to the extent that the same shall be approved by, or
be made pursuant to any rule, regulation, or order of, any
governmental authority having jurisdiction in the premises and
shall not be required by such authority to be charged against
earnings accumulated after December 31, 1996.
SECTION 3.2. So long as any Bonds of the Nineteenth Series
shall remain outstanding, the Company will satisfy its
obligations under the Replacement Fund provided for in Section
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5.19 of the Original Indenture first through the use of all
available property additions and retired Bonds of any Series and
then, if and only to the extent that said property additions and
retired Bonds are not sufficient to satisfy such obligations,
through the use of cash.
SECTION 3.3. So long as any Bonds of the Nineteenth Series
shall remain outstanding, in the event that the Company shall
consolidate or merge with or into any corporation or
corporations, or the Company shall transfer all of its property
and franchises to any other corporation, the corporation formed
by any such consolidation, or into which the Company shall be so
merged, or which shall acquire such property of the Company,
shall be a corporation incorporated under the laws of the United
States, any State or the District of Columbia.
SECTION 3.4. So long as any Bonds of the Nineteenth Series
shall remain outstanding, no owner of any portion of the
mortgaged property will be entitled to any credit against
interest payable on any Bonds by reason of the payment of any
tax on such property.
ARTICLE IV
ISSUE AND AUTHENTICATION OF BONDS OF THE NINETEENTH SERIES
Upon compliance by the Company with the requirements of the
Indenture, including the Twenty-First Supplement, for the
issuance of additional Bonds, Bonds of the Nineteenth Series up
to an aggregate principal amount of $35,000,000 may forthwith,
or from time to time, be executed by the Company and delivered
to the Trustee, and the Trustee shall thereupon authenticate and
deliver said Bonds in accordance with the provisions of Article
III of the Original Indenture. The signature of the officers of
the Company on Bonds of the Nineteenth Series may be by
facsimile if so authorized by the Company's Board of Directors.
ARTICLE V
AMENDMENT TO THE ORIGINAL INDENTURE
SECTION 5.1. Section 3.06. of the Original Indenture shall
be amended to delete paragraph (2) of subsection A thereof, so that
such Section shall thereafter read in full as follows:
"SECTION 3.06. ADDITIONAL BONDS CONDITIONS FOR AUTHENTICATION
ACQUISITION OR REFUNDING OF BONDS ISSUED HEREUNDER. Whenever
any Bonds shall have been acquired, paid, or retired by the
- 20 -
Company, or whenever the Company shall have made provision for
the payment of any Bonds (as such provision for payment is
defined in Article I), or shall surrender any Bonds to the
Trustee, thereupon or at any time thereafter additional Bonds
shall be authenticated and delivered by the Trustee in a
principal amount not exceeding the principal amount of the Bonds
so acquired, paid, retired, surrendered, or for the payment of
which such provision shall have been made, upon application by
the Company and upon compliance with the following conditions,
in addition to those specified in Section 3.03:
A. Any Bonds so acquired, paid, retired or surrendered, or
for which payment shall have been so provided, may, when deposited
with the Trustee as below provided in Subdivision B, be
uncancelled or may have been cancelled; provided, however, that
in respect of any which shall have been cancelled prior to or
concurrently with the application for such authentication (and,
for the purposes of this Subdivision A, in case payment shall
have been so provided for such Bonds, the same shall be deemed
to have been cancelled upon the date of such provision for
payment) no Bond shall have been authenticated in lieu thereof
or in exchange therefor or by virtue of the acquisition,
payment, retirement, cancellation, or such provision for payment
thereof; nor shall any money have been withdrawn hereunder by
virtue of such acquisition, payment, retirement, cancellation,
or provision.
B. There shall be delivered to the Trustee the following
documents:
(1) The Bonds so acquired, paid, retired, or surrendered. Any
of such Bonds which shall be uncancelled shall be in negotiable
form or accompanied by proper instruments of assignment and
transfer, and shall be accompanied by all unmatured coupons, if
any, appertaining thereto. In the case of any Bonds for which
payment shall have been so provided, such Bonds shall not then
be required to be deposited, but in lieu thereof the Company
shall deliver to the Trustee a statement describing the same;
thereafter, upon payment of such Bonds, the same shall forthwith
be delivered to the Trustee for cancellation. In the case of
any Bonds which shall have been paid or retired or surrendered
and which shall have theretofore been cancelled and cremated by
the Trustee, such Bonds shall not be required to be deposited,
but in lieu thereof the Company shall deliver to the Trustee a
statement describing the same and specifying the date upon which
the same were paid or retired or surrendered and were cancelled
and cremated.
(2) If the Bonds so deposited shall be cancelled Bonds, or if
in lieu of such deposit of Bonds a statement by the Company
shall be delivered as provided in subparagraph (1) of this
Subdivision B, a certificate by the President or a
Vice-President of the Company, stating such facts in connection
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therewith as may reasonably be required to show compliance with
the conditions specified in Subdivision A.
C. If the Bonds so acquired, paid, retired, surrendered,
or the payment of which has been so provided for, shall not at any
time theretofore have been bona fide issued by the Company, and
if they shall bear interest at a lower rate per annum than the
new Bonds the authentication of which is then applied for, the
net earnings condition specified in Subdivision C of Section
3.04 shall be complied with, and the Company shall deliver to
the Trustee (i) a net earnings certificate, conforming to the
provision of Subdivision E (3) of Section 3.04, showing the
fixed charges and net earnings of the Company in such reasonable
detail as may be required to show compliance with said
condition, (ii) an opinion of counsel conforming to the
provisions of Subdivision E (4) (b) of Section 3.04, and (iii) a
certificate by the trustee or mortgagee of each prior lien
conforming to the provisions of Subdivision E (5) of Section
3.04"
SECTION 5.2. The foregoing amendment to Section 3.06 of the
Original Indenture shall become effective upon the earlier to
occur of the following:
(a) the date as of which no Bonds remain outstanding that
where part of a series of Bonds initially issued prior to the issuance
of Bonds of the Nineteenth Series;
(b) the date as of which a supplemental indenture to the
Indenture is executed by the Company and the Trustee setting
forth the foregoing amendment to Section 3.06 of the Original
Indenture, after the holders of at least 66 2/3% of the Bonds
then outstanding have consented to and approved the execution of
such supplemental indenture, all in accordance with Article X
and the other relevant provisions of the Original Indenture.
SECTION 5.3. Each holder of any Bonds of the Nineteenth
Series, by the acceptance by such holder of such Bonds, (a)
consents to and approves the foregoing amendment to Section 3.06
of the Original Indenture, and consents to and approves the
execution by the Company and the Trustee of a supplemental
indenture to the Indenture setting forth such amendment, and (b)
agrees to execute such instrument or instruments as may be
requested by the Company or the Trustee to evidence such consent
and approval in accordance with Section 10.02 of the Original
Indenture.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. The Trustee, for itself and its successors in
said trusts, hereby accepts the trust hereby provided and agrees
to perform the same upon the terms and conditions contained in
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the Indenture, including the Twenty-First Supplement. The
Trustee shall not be responsible in any manner whatsoever for
the recitals in the Twenty-First Supplement.
SECTION 6.2. So long as any Bonds of the Nineteenth Series
shall remain outstanding, any successor trustee to the Trustee
shall at all times be a corporation which shall have at all
times a combined capital and surplus of not less than
$100,000,000. If any such successor trustee publishes reports
of condition annually, pursuant to law or to the requirements of
a supervising or examining authority, the combined capital and
surplus of such successor trustee at any time for the purposes
of this Section shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
ARTICLE VII
CONCERNING EVENTS OF DEFAULT
SECTION 7.1. So long as any Bonds of the Nineteenth Series
shall remain outstanding, the following shall constitute events
of default within the meaning of Section 9.02 of the Original
Indenture (in addition to the events of default set forth in
Section 9.02 of the Original Indenture):
(a) If the Company shall default in the payment of any
portion of the principal of any Bond of the Nineteenth Series, as and
when the same shall have made due, whether at the stated
maturity thereof or upon proceedings for redemption (pursuant to
the provisions of any sinking, replacement, purchase or other
analogous fund established in the Original Indenture or in the
Twenty-First Supplement or pursuant to any optional or other
redemption) or otherwise; provided, however, that in the event
the Company and the Trustee shall have taken all action required
to be taken so that each such payment of principal by means of
wire transfer could reasonably be expected to be effective on
the due date thereof, but nevertheless, any such transfer shall
not have been credited to the account of a registered owner of
Bonds of the Nineteenth Series to whom such payment is required
to be made effective as of the due date, the Company shall not
be deemed to have defaulted upon the obligation to make such
payment until the expiration of five days following said due
date;
(b) if the Company shall default in the payment of any
installment of interest due on any Bond of the Nineteenth Series
and such default shall continue for a period of 10 days; or
(c) if the Company shall default in the performance of or
compliance with any covenant, condition or term contained in the
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Indenture, including the Twenty-First Supplement, and such
default shall continue for 30 days after the Company shall have
knowledge thereof.
SECTION 7.2. So long as any Bonds of the Nineteenth Series
shall remain outstanding, the Company covenants that if at any
time or times or from time to time an event of default referred
to in Section 7.1 of the Twenty-First Supplement shall occur,
the Company will, on demand of the Trustee, forthwith pay to the
Trustee, for the benefit of all holders of Bonds then
outstanding under the Indenture, a sum equal to the total amount
then due for principal and interest on all Bonds then
outstanding under the Indenture, with interest thereon (to the
extent that payment of such interest is enforceable under
applicable law) in accordance with the terms of the respective
Bonds.
Should said sum not be so paid to the Trustee, it shall be
entitled, at any time or times and from time to time, in its own
name and as Trustee of an express trust and without the
possession or production of any Bonds of any Series or coupons,
to recover judgment for the same against the Company or any
other obligor upon such Bonds.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. As supplemented and amended by the Twenty-First
Supplement, the Indenture is in all respects ratified and
confirmed, and the Indenture, including the Twenty-First
Supplement, shall be read as one instrument. All terms used in
the Twenty-First Supplement shall have the same meaning as used
elsewhere in the Indenture except where the context clearly
indicates otherwise.
SECTION 8.2. The Twenty-First Supplement has been dated as
of March 1, 1997 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 8.3. The Twenty-First Supplement may be executed in
several counterparts, each of which shall be considered an
original and all collectively as but one instrument.
SECTION 8.4. The approval of the New Jersey BPU of the
execution and delivery of these presents, and of the issue of
any Bonds of the Nineteenth Series, shall not be construed as
approval of said New Jersey BPU of any other act, matter or
thing which requires approval of said New Jersey BPU under the
laws of the States of New Jersey; nor shall the approval of said
New Jersey BPU of the issue of any such Bonds bind said New
Jersey BPU or any other public body or authority of the State of
New Jersey having jurisdiction in the premises in any future
application for the issuance of Bonds under the Indenture.
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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/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
President
ATTEST:
[SEAL]
/s/ X. X. Xxxxxx
X. X. Xxxxxx
Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxx
ATTEST: [SEAL]
/s/ Xxxxxx X. Xxxxxxxxxx
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STATE OF NEW JERSEY :
: ss:
COUNTY OF ATLANTIC :
Be it remembered, that on this March 18, before me, a Notary
Public of New Jersey, personally appeared Xxxxxxx X. Xxxx, 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.
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
Notary Public Notary Public of New Jersey
New Jersey
My Commission Expires: May 2, 0000
XXXXX XX XXX XXXXXX :
: ss
COUNTY OF XXXXXX :
Be it remembered, that on this ___________, before me, a Notary
Public of New Jersey, personally appeared, who, I am satisfied,
is an Assistant Vice President of The Bank of New York, one of
the corporations named in the foregoing deed or instrument, and
I have 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/ Xxxxxx X. Xxxxxx
Notary Public of New Jersey
My Commission Expires:
XXXXXX X. XXXXXX
Notary Public, State of New Jersey
No. 2192036
Qualified in Passaic County
Commission Expires July 31, 2001
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The within Twenty-First Supplemental Indenture has been
recorded and filed as follows:
Date of
County Recordation Book Page
New Jersey:
Atlantic
Burlington
Camden
Cape May
Cumberland
Gloucester
Salem
