FOURTH SUPPLEMENT TO INDENTURE OF TRUST, DATED AS OF OCTOBER 1, 1998
EXHIBIT
4.1
TO
INDENTURE OF TRUST, DATED AS OF OCTOBER 1, 1998
THIS
FOURTH SUPPLEMENT TO INDENTURE OF TRUST, dated as of February 26, 2010 (this
“Fourth 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 MELLON (formerly known as 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,” and as supplemented by the First Supplement, dated as of
June 29, 2000 (the “First Supplement”), the Second Supplement, dated as of July
5, 2000 (the “Second Supplement”), the Third Supplement, dated as of July 9,
2001 (the “Third Supplement”), and this Fourth Supplement, the “Indenture”) to
provide for the issuance of its Notes; and
WHEREAS,
as provided in the Indenture, the Company may from time to time issue and sell
additional Notes to be issued under the Indenture; and
WHEREAS,
the Company may, in the future, desire to issue additional Notes that have terms
different from those provided for in the Indenture; and
WHEREAS,
the execution and delivery of this Fourth Supplement have been duly authorized
by a duly authorized and constituted committee of the Board of Directors of the
Company; 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 additional Notes that may be issued
under the Indenture after the date of this Fourth Supplement have terms
consistent with the Indenture as supplemented hereby, 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 Fourth 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 FOURTH SUPPLEMENT TO INDENTURE WITNESSETH:
That in
order to declare the terms and conditions upon which the Notes issued after the
date of this Fourth Supplement may be authenticated, issued and delivered and in
consideration of the premises and of the purchase and acceptance of any such
Notes by the Noteholders thereof and the sum of One Dollar duly paid to it by
the Trustee at the
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execution
of this Fourth 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 Notes that pursuant
to a Company Order are authenticated with terms permitted by the Indenture, as
supplemented by this Fourth Supplemental Indenture, as follows (Capitalized
terms used but not otherwise defined herein shall have the meanings set forth in
the Indenture):
ARTICLE
ONE.
ADDITIONAL
TERMS FOR NOTES
Notwithstanding
the grace periods set forth in Sections 8.1(a)(1) and 8.1(a)(2) of the
Indenture, any Notes issued after the date of this Fourth Supplemental Indenture
may, if set forth in a Board Resolution or a Company Order, provide for any
length of grace period, or no grace period, before the failure to make any
payment of principal, interest, premium or other amount shall constitute an
Event of Default.
SECTION
1.2 PAYMENT
TO NOTEHOLDERS
Notwithstanding
anything in the Indenture to the contrary, any Notes issued after the date of
this Fourth Supplemental Indenture may, if set forth in a Board Resolution or a
Company Order, provide for payment of principal, interest, premium or other
amount to a Noteholder in any manner provided in such Company Order or Board
Resolution.
SECTION
1.3 AMENDMENT
OF SECTION 8.3 OF THE INDENTURE
With
respect to any Notes issued after the date of this Fourth Supplemental
Indenture, Section 8.3 of the Indenture is amended so as to add a new clause
“Fourth” following clause “Third” and to re-label clause “Fourth” as clause
“Fifth” to read as follows:
Fourth: to the payment
to the persons entitled thereto of all other amounts due and unpaid on and under
the Notes including, but not limited to, all other amounts, costs and expenses
(including reasonable attorneys’ fees and expenses) payable to the Holders
ratably, according to such amounts due, to the persons entitled thereto, without
any discrimination or preference.
Fifth: to the payment
of the remainder, if any, to the Company or its successors or assigns, or to
whomsoever may lawfully be entitled to the same, or as a court of competent
jurisdiction may determine.
SECTION
1.4 PROCEEDINGS
BY NOTEHOLDERS
Notwithstanding Section 8.4 of the
Indenture, any Notes issued after the date of this Fourth Supplemental Indenture
may, if set forth in a Board Resolution or a Company Order, provide Holders of
such Notes the right to institute suits, actions and/or proceedings against the
Company upon the occurrence and continuance of an Event of Default as
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provided
in such Company Order or Board Resolution.
SECTION
1.5 NOTICES
Notwithstanding Section 15.3 of the
Indenture, any Notes issued after the date of this Fourth Supplemental Indenture
may, if set forth in a Board Resolution or a Company Order, provide that notices
required or permitted to be given thereunder be given in the manner provided in
such Company Order or Board Resolution.
ARTICLE
TWO.
MISCELLANEOUS
SECTION
2.1 EFFECT
ON INDENTURE
As
supplemented by this Fourth Supplement, the Indenture is in all respects
ratified and confirmed, and the Indenture, including the First Supplement, the
Second Supplement, the Third Supplement and this Fourth Supplement, shall be
read as one instrument. All terms used in this Fourth Supplement
shall have the same meaning as used elsewhere in the Indenture except where the
context clearly indicates otherwise.
SECTION
2.2 COUNTERPARTS
This
Fourth 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 Fourth 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 Mellon 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
Name: Xxxxx
X. Xxxxxxxx
Title: Senior
Vice President and Chief Financial
Officer
ATTEST: /s/ Xxxx
Xxxxxxx-Xxxx
Name: Xxxx
Xxxxxxx-Xxxx
Title: Secretary
THE BANK
OF NEW YORK MELLON
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President
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