- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
MORTGAGE
NEW JERSEY NATURAL GAS COMPANY
To
HARRIS TRUST AND SAVINGS BANK,
As Trustee
___________________________
TWENTY-FOURTH SUPPLEMENTAL INDENTURE
Dated as of October 1, 1994
___________________________
Supplemental to Indenture of Mortgage and
Deed of Trust Dated April 1, 1952
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Prepared by: Sheri E. Bloomberg, Esq.
LeBoeuf, Lamb, Greene & MacRae
125 West 55th Street
New York, New York 10019
MORTGAGE
TWENTY-FOURTH SUPPLEMENTAL INDENTURE, dated as of October 1, 1994, between
NEW JERSEY NATURAL GAS COMPANY, a corporation organized and existing under the
laws of the State of New Jersey (hereinafter called the "Company"), having its
principal office at 1415 Wyckoff Road, Wall, New Jersey, party of the first
part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing
under the laws of the State of Illinois and authorized to accept and execute
trusts (hereinafter called the "Trustee"), having its principal office at
111 West Monroe Street, Chicago, Illinois, as Trustee under the Indenture of
Mortgage and Deed of Trust hereinafter mentioned, party of the second part.
WHEREAS, the Company has heretofore executed and delivered to the Trustee
its Indenture of Mortgage and Deed of Trust dated April 1, 1952 (hereinafter
sometimes called the "Original Indenture") to secure the payment of the
principal of and the interest and premium (if any) on all Bonds at any time
issued and outstanding thereunder, and to declare the terms and conditions upon
which Bonds are to be issued thereunder; and
WHEREAS, the Company thereafter executed and delivered to the Trustee its
First Supplemental Indenture dated February 1, 1958, its Second Supplemental
Indenture dated December 1, 1960, its Third Supplemental Indenture dated July
1, 1962, its Fourth Supplemental Indenture dated September 1, 1962, its Fifth
Supplemental Indenture dated December 1, 1963, its Sixth Supplemental
Indenture dated June 1, 1966, its Seventh Supplemental Indenture dated October
1, 1970, its Eighth Supplemental Indenture dated May 1, 1975, its Ninth
Supplemental Indenture dated February 1, 1977, its Tenth Supplemental
Indenture dated as of September 1, 1980, its Eleventh Supplemental Indenture
dated as of September 1, 1983, its Twelfth Supplemental Indenture dated as of
August 1, 1984, its Thirteenth Supplemental Indenture dated as of September 1,
1985, its Fourteenth Supplemental Indenture dated as of May 1, 1986, its
Fifteenth Supplemental Indenture dated as of March 1, 1987, its Sixteenth
Supplemental Indenture dated as of December 1, 1987, its Seventeenth
Supplemental Indenture dated as of June 1, 1988, its Eighteenth Supplemental
Indenture dated as of June 1, 1989, its Nineteenth Supplemental Indenture
dated as of March 1, 1991, its Twentieth Supplemental Indenture dated as of
December 1, 1992, its Twenty-First Supplemental Indenture dated as of
August 1, 1993, its Twenty-Second Supplemental Indenture dated as of October
1, 1993 and its Twenty-Third Supplemental Indenture dated as of August 15,
1994, supplementing and amending the Original Indenture; and
WHEREAS, Bonds in the aggregate principal amount of Twelve Million Five
Hundred Thousand Dollars ($12,500,000) were issued under and in accordance with
the terms of the Original Indenture, as an initial series designated "First
Mortgage Bonds,
-2-
4-1/4% Series A due 1977", herein sometimes called "1977 Series A Bonds",
which 1977 Series A Bonds have since been paid and redeemed by the Company;
and
WHEREAS, thereafter Bonds in the aggregate principal amount of Two
Million Two Hundred Fifty Thousand Dollars ($2,250,000) were issued under and
in accordance with the terms of the Original Indenture, as supplemented and
amended by the First Supplemental Indenture, as a second series designated
"First Mortgage Bonds, 5% Series B due 1983", herein sometimes called "1983
Series B Bonds", which 1983 Series B Bonds have since been paid and redeemed
by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Four
Million Dollars ($4,000,000) were issued under and in accordance with the
terms of the Original Indenture, as supplemented and amended by the First
Supplemental Indenture and the Second Supplemental Indenture, as a third
series designated "First Mortgage Bonds, 5-1/8% Series C due 1985", herein
sometimes called "1985 Series C Bonds", which 1985 Series C Bonds have since
been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Five
Million Dollars ($5,000,000) were issued under and in accordance with the
terms of the Original Indenture, as supplemented and amended by the First
through the Fourth Supplemental Indentures, inclusive, as a fourth series
designated "First Mortgage Bonds, 4-7/8% Series D due 1987", herein sometimes
called "1987 Series D Bonds", which 1987 Series D Bonds have since been paid
and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Four
Million Five Hundred Thousand Dollars ($4,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Fifth Supplemental Indentures, inclusive, as
a fifth series designated "First Mortgage Bonds, 4-3/4% Series E due 1988",
herein sometimes called "1988 Series E Bonds", which 1988 Series E Bonds have
since been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were issued under and in accordance with the
terms of the Original Indenture, as supplemented and amended by the First
through the Seventh Supplemental Indentures, inclusive, as a sixth series
designated "First Mortgage Bonds, 9-1/4% Series F due 1995", herein sometimes
called "1995 Series F Bonds", which 1995 Series F Bonds have since been paid
and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Dollars ($10,000,000) were issued under and in accordance with the
terms of the Original Indenture, as
-3-
supplemented and amended by the First through the Eighth Supplemental
Indentures, inclusive, as a seventh series designated "First Mortgage Bonds,
10% Series G due 1987", herein sometimes called "1987 Series G Bonds", which
1987 Series G Bonds have since been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten Million
Dollars ($10,000,000) were issued under and in accordance with the terms of the
Original Indenture, as supplemented and amended by the First through the Ninth
Supplemental Indentures, inclusive, as an eighth series designated "First
Mortgage Bonds, 9% Series H due 1992", herein sometimes called "1992 Series H
Bonds", which 1992 Series H Bonds have since been paid and redeemed by the
Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Nine
Million Five Hundred Forty-Five Thousand Dollars ($9,545,000) were issued
under and in accordance with the terms of the Original Indenture, as
supplemented and amended by the First through the Tenth Supplemental
Indentures, inclusive, as a ninth series designated "First Mortgage Bonds,
9-1/8% Series J due 2000", herein sometimes called "2000 Series J Bonds",
which 2000 Series J Bonds have since been paid and redeemed by the Company;
and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Three Hundred Thousand Dollars ($10,300,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Eleventh Supplemental Indentures, inclusive,
as a tenth series designated "First Mortgage Bonds, 10-3/8% Series K due
2013", herein sometimes called "2013 Series K Bonds", which 2013 Series K
Bonds have since been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Five Hundred Thousand Dollars ($10,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Twelfth Supplemental Indentures, inclusive,
as an eleventh series designated "First Mortgage Bonds, 10-1/2% Series L due
2014", herein sometimes called "2014 Series L Bonds", which 2014 Series L
Bonds have since been paid and redeemed by the Company; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Twelve
Million Dollars ($12,000,000) were issued under and in accordance with the
terms of the Original Indenture, as supplemented and amended by the First
through the Thirteenth Supplemental Indentures, inclusive, as a twelfth series
designated "First Mortgage Bonds, 10.85% Series M due 2000", herein sometimes
called "2000 Series M Bonds", of which Seven
-4-
Million Two Hundred Thousand Dollars ($7,200,000) in principal amount are
outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten
Million Dollars ($10,000,000) were issued under and in accordance with the
terms of the Original Indenture as supplemented and amended by the First
through the Fourteenth Supplemental Indentures, inclusive, as a thirteenth
series designated "First Mortgage Bonds, 10% Series N due 2001", herein
sometimes called "2001 Series N Bonds", of which Seven Million Dollars
($7,000,000) in principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were issued under and in accordance with the
terms of the Original Indenture, as supplemented and amended by the First
through the Fifteenth Supplemental Indentures, inclusive, as a fourteenth
series designated "First Mortgage Bonds, 8.50% Series P due 2002", herein
sometimes called "2002 Series P Bonds", of which Ten Million Nine Hundred Nine
Thousand and Two Hundred Dollars ($10,909,200) in principal amount are
outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and
amended by the First through the Sixteenth Supplemental Indentures, inclusive,
as a fifteenth series designated "First Mortgage Bonds, 9% Series Q due 2017",
herein sometimes called "2017 Series Q Bonds", of which Thirteen Million Five
Hundred Thousand Dollars ($13,500,000) in principal amount are outstanding at
the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through the Seventeenth Supplemental Indentures, inclusive, as a
sixteenth series designated "First Mortgage Bonds, 8.50% Series R due 2018",
herein sometimes called "2018 Series R Bonds", of which Twenty Five Million
Dollars ($25,000,000) in principal amount are outstanding at the date hereof;
and
WHEREAS, thereafter Bonds in the aggregate principal amount of Twenty
Million Dollars ($20,000,000) were issued under and in accordance with the
terms of the Original Indenture, as supplemented and amended by the First
through the Eighteenth Supplemental Indentures, inclusive, as a seventeenth
series designated "First Mortgage Bonds, 10.10% Series S due 2009", herein
sometimes called "2009 Series S Bonds", of which Twenty
-5-
Million Dollars ($20,000,000) in principal amount are outstanding at the date
hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Nine Million
Five Hundred Forty-Five Thousand Dollars ($9,545,000) were issued under and in
accordance with the terms of the Original Indenture, as supplemented and amended
by the First through the Nineteenth Supplemental Indentures, inclusive, as an
eighteenth series designated "First Mortgage Bonds, 7.05% Series T due 2016",
herein sometimes called "2016 Series T Bonds", of which Nine Million Five
Hundred Forty-Five Thousand Dollars ($9,545,000) in principal amount are
outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Fifteen
Million Dollars ($15,000,000) were authorized, of which Fifteen Million Dollars
($15,000,000) have been issued under and in accordance with the terms of the
Original Indenture, as supplemented and amended by the First through the
Nineteenth Supplemental Indentures, inclusive, as a nineteenth series designated
"First Mortgage Bonds, 7.25% Series U due 2021", herein sometimes called "2021
Series U Bonds", of which Fifteen Million Dollars ($15,000,000) in principal
amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Twenty-Five
Million Dollars ($25,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twentieth Supplemental Indentures, inclusive, as a twentieth series designated
"First Mortgage Bonds, 7.50% Series V due 2002", herein sometimes called "2002
Series V Bonds", of which Twenty Five Million Dollars ($25,000,000) in
principal amount are outstanding at the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten Million
Three Hundred Thousand Dollars ($10,300,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through the Twenty-First Supplemental Indentures, inclusive, as a
twenty-first series designated "First Mortgage Bonds, 5-3/8% Series W due 2023",
herein sometimes called "2023 Series W Bonds", of which Ten Million Three
Hundred Thousand Dollars ($10,300,000) in principal amount are outstanding at
the date hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Thirty
Million Dollars ($30,000,000) were issued under and in accordance with the terms
of the Original Indenture, as supplemented and amended by the First through the
Twenty-Second Supplemental Indentures, inclusive, as a twenty-second series
designated "First Mortgage Bonds, 6.27% Series X due 2008", herein sometimes
called "2008 Series X Bonds", of which Thirty
-6-
Million Dollars ($30,000,000) in principal amount are outstanding at the date
hereof; and
WHEREAS, thereafter Bonds in the aggregate principal amount of Ten Million
Five Hundred Thousand Dollars ($10,500,000) were issued under and in accordance
with the terms of the Original Indenture, as supplemented and amended by the
First through Twenty-Third Supplemental Indentures, inclusive, as a twenty-third
series designated "First Mortgage Bonds, 6.25% Series Y due 2024", herein
sometimes called "2024 Series Y Bonds", of which Ten Million Five Hundred
Thousand Dollars ($10,500,000) in principal amount are outstanding at the date
hereof; and
WHEREAS, the Original Indenture provides that, subject to certain
exceptions not presently relevant, such changes in or additions to the
provisions of the Indenture (the term "Indenture" and other terms used herein
having the meanings assigned thereto in the Original Indenture except as herein
expressly modified) may be made to add to the covenants and agreements of the
Company in the Indenture contained other covenants and agreements thereafter to
be observed by the Company; and to provide for the creation of any series of
Bonds, designating the series to be created and specifying the form and
provisions of the Bonds of such series as in the Indenture provided or
permitted; and
WHEREAS, the Indenture further provides that the Company and the Trustee
may enter into indentures supplemental to the Indenture to convey, transfer and
assign unto the Trustee and to subject to the lien of the Indenture additional
properties acquired by the Company; and
WHEREAS, the Company has duly determined to create a twenty-fourth series
of Bonds, to be known as "First Mortgage Bonds, 8.25% Series Z due 2004",
herein sometimes called "2004 Series Z Bonds", all as herein provided, and to
add to the covenants and agreements contained in the Indenture the covenants
and agreements hereinafter set forth; and
WHEREAS, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Indenture and
pursuant to appropriate resolutions of its Board of Directors (including the
Executive Committee thereof), has duly resolved and determined to make,
execute and deliver to the Trustee a Twenty-Fourth Supplemental Indenture in
the form hereof for the purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make this
Twenty-Fourth Supplemental Indenture a valid, binding and legal instrument
have been done, performed and fulfilled and the execution and delivery hereof
have been in all respects duly authorized.
-7-
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That NEW JERSEY NATURAL GAS COMPANY, by way of further assurance and in
consideration of the premises and of the acceptance by the Trustee of the
trusts hereby created and of One Dollar to it duly paid by the Trustee at or
before the ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, and in order to secure the payment of principal of and
any premium which may be due and payable on 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 all the
covenants and conditions herein and therein contained, has granted, bargained,
sold, warranted, aliened, remised, released, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed, and by these presents does grant,
bargain, sell, warrant, alien, remise, release, convey, assign, transfer,
mortgage, pledge, set over and confirm, unto the party of the second part, and
to its successors in the trust, and to it and its assigns forever, and has
granted and does hereby grant thereunto a security interest in, all of the
property, real, personal and mixed, now owned by the Company and situated in
the Counties of Burlington, Middlesex, Monmouth, Morris, Ocean, Passaic,
Somerset and Sussex in the State of New Jersey, or wherever situate (except
property specifically excepted from the lien of the Indenture by the terms of
the Indenture) and also all of the property, real, personal and mixed,
hereafter acquired by the Company wherever situate (except property
specifically excepted from the lien of the Indenture by the terms of the
Indenture), including both as to property now owned and property hereafter
acquired, without in anywise limiting or impairing the enumeration of the
same, the scope and intent of the foregoing or of any general or specific
description contained in the Indenture, the following:
I.
FRANCHISES
All and singular, the franchises, grants, permits, immunities, privileges
and rights of the Company owned and held by it at the date of the execution
hereof or hereafter acquired for the construction, maintenance, and operation
of the gas plants and systems now or hereafter subject to the lien hereof, as
well as all certificates, franchises, grants, permits, immunities, privileges,
and rights of the Company used or useful in the operation of the property now
or hereafter mortgaged hereunder, including all and singular the franchises,
grants, permits, immunities, privileges, and rights of the Company granted by
the governing authorities of any municipalities or other political
subdivisions and all renewals, extensions and
-8-
modifications of said certificates, franchises, grants, permits, privileges,
and rights or any of them.
II.
GAS DISTRIBUTION SYSTEMS AND RELATED PROPERTY
All gas generating plants, gas storage plants and gas manufacturing
plants of the Company, all the buildings, erections, structures, generating
and purifying apparatus,holders, engines, boilers, benches, retorts, tanks,
instruments, appliances, apparatus, facilities, machinery, fixtures, and all
other property used or provided for use in the generation, manufacturing and
purifying of gas, together with the land on which the same are situated, and
all other lands and easements, rights-of-way, permits, privileges, and sites
forming a part of such plants or any of them or occupied, enjoyed or used in
connection therewith.
All gas distribution or gas transmission systems of the Company, all
buildings, erections, structures, generating and purifying apparatus, holders,
engines, boilers, benches, retorts, tanks, pipe lines, connections, service
pipes, meters, conduits, tools, instruments, appliances, apparatus,
facilities, machinery, fixtures, and all other property used or provided for
use in the construction, maintenance, repair or operations of such
distribution or transmission systems, together with all the certificates,
rights, privileges, rights-of-way, franchises, licenses, easements, grants,
liberties, immunities, permits of the Company, howsoever conferred or
acquired, under, over, or upon any private property or any public streets or
highways within as well as without the corporate limits of any municipal
corporation. Without limiting the generality of the foregoing, there are
expressly included the gas distribution or gas transmission systems located in
the Counties of Burlington, Middlesex, Monmouth, Morris, Ocean, Passaic,
Somerset and Sussex in the State of New Jersey, and in the following
municipalities in said State and Counties: Aberdeen Township (formerly Matawan
Township), Allenhurst Borough, City of Asbury Park, Atlantic Highlands
Borough, Avon Borough, Barnegat Light Borough, Barnegat Township (formerly
named Union Township), Bay Head Borough, Beach Haven Borough, Beachwood
Borough, Belmar Borough, Berkeley Township, Boonton Town, Boonton Township,
Bradley Beach Borough, Brick Township, Brielle Borough, Colts Neck Township,
Deal Borough, Denville Township, Dover Town, Dover Township, Eagleswood
Township, East Brunswick Township, Eatontown Borough, Englishtown Borough,
Fair Haven Borough, Farmingdale Borough, Franklin Township in Somerset County,
Freehold Borough, Freehold Township, Hanover Township, Harvey Cedars Borough,
Hazlet Township, Highlands Borough, Holmdel Township, Hopatcong Borough,
Howell Township, Interlaken Borough, Island Heights Borough, Jackson Township,
Jefferson Township, Keansburg Borough, Keyport
-9-
Borough, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette
Borough, Lincoln Park Borough, Little Egg Harbor Township, Little Silver
Borough, Loch Arbour Village, Long Beach Township, Long Branch City, Manalapan
Township, Manasquan Borough, Manchester Township, Mantoloking Borough,
Marlboro Township, Matawan Borough, Middletown Township, Milltown Borough,
Mine Hill Township, Monmouth Beach Borough, Monroe Township, Montville
Township, Morris Plains Borough, Mount Arlington Borough, Mount Olive
Township, Mountain Lakes Borough, Neptune City Borough, Neptune Township,
Netcong Borough, New Brunswick City, North Brunswick Township, Ocean Township
in Monmouth County, Ocean Township in Ocean County, Ocean Gate Borough,
Oceanport Borough, Old Bridge Township (formerly named Madison Township),
Parsippany-Troy Hills Township, Pine Beach Borough, Point Pleasant Borough,
Point Pleasant Beach Borough, Randolph Township, Red Bank Borough, Rockaway
Borough, Rockaway Township, Roxbury Township, Rumson Borough, Sayreville
Borough, Sea Bright Borough, Sea Girt Borough, Seaside Heights Borough,
Seaside Park Borough, Ship Bottom Borough, Shrewsbury Borough, Shrewsbury
Township, South Belmar Borough, South Brunswick Township, South River Borough,
South Toms River Borough, Spring Lake Borough, Spring Lake Heights Borough,
Stafford Township, Surf City Borough, Tinton Falls Borough (formerly named New
Shrewsbury Borough), Tuckerton Borough, Union Beach Borough, Union Township,
Victory Gardens Borough, Wall Township, Washington Township in Burlington
County, Washington Township in Morris County, West Long Branch Borough, West
Milford Township and Wharton Borough.
III.
CONTRACTS
All of the Company's right, title and interest in and under all contracts,
licenses or leases for the purchase of gas, either in effect at the date of
execution hereof or hereafter made and any extension or renewal thereof.
TOGETHER WITH ALL AND SINGULAR the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the Trust Estate, or any
part thereof, with the reversion or reversions, remainder and remainders,
rents, issues, income and profits thereof, and all the right, title, interest
and claim whatsoever, at law or in equity, which the Company now has or which
it may hereafter acquire in and to the Trust Estate and every part and parcel
thereof.
TO HAVE AND TO HOLD the Trust Estate and all and singular the lands,
properties, estates, rights, franchises, privileges and appurtenances hereby
mortgaged, conveyed, pledged or assigned, or intended so to be, together with
all the appurtenances thereto appertaining, unto the Trustee and its successors
and assigns forever;
-10-
SUBJECT, HOWEVER, as to property hereby conveyed, to Permitted
Encumbrances;
BUT IN TRUST, NEVERTHELESS, under and subject to the terms and conditions
hereafter set forth, for the equal and proportionate use, benefit, security and
protection of each and every person and corporation who may be or become the
holders of the Bonds and coupons hereby secured, if any, without preference,
priority or distinction as to the lien or otherwise of one Bond or coupon over
or from the others by reason of priority in the issue or negotiation thereof, or
by reason of the date of maturity thereof, or otherwise (except as any sinking,
amortization, improvement, renewal or other analogous fund, established in
accordance with the provisions of the Indenture, may afford additional security
for the Bonds of any particular series and except as provided in [section]9.02
of the Indenture), and for securing the observance and performance of all the
terms, provisions and conditions of the Indenture.
THIS INDENTURE FURTHER WITNESSETH, that the Company has agreed and
covenanted, and hereby does agree and covenant, with the Trustee and its
successors and assigns and with the respective holders from time to time of
the Bonds and coupons, or any thereof, as follows:
ARTICLE I.
CERTAIN AMENDMENTS OF INDENTURE
s.1.1. The Original Indenture, as heretofore amended, be and it hereby is
further amended in the following respects, the section numbers specified below
being the sections of the Indenture in which such amendments occur:
s.1.01. The following definition be and it hereby is added immediately
after the twenty-fourth sentence of s.1.01B:
"'TWENTY-FOURTH SUPPLEMENTAL INDENTURE' shall mean the Supplemental
Indenture dated as of October 1, 1994, supplemental to the Indenture."
s.1.01. The following definition be and it hereby is added immediately
after the twenty-fifth sentence of s.1.01F:
"'2004 SERIES Z BOND' shall mean one of the First Mortgage Bonds, 8.25%
Series Z due 2004, issued hereunder."
s.2.11. The following be and it hereby is added at the end of s.2.11:
-11-
"No charge except for taxes or governmental charges shall be made against
any holder of any 2004 Series Z Bond for the exchange, transfer or
registration of transfer thereof."
s.8.08. The period at the end of the first paragraph of s.8.08 be and it
hereby is deleted and the following words and figures be and they hereby are
added thereto:
", and the 2004 Series Z Bonds shall be redeemed at the redemption price
specified in s.10.65."
s.12.1. Article Two of the Original Indenture is amended to add a new
Section 2.13, which reads in its entirety as follows:
SECTION 2.13. Securities Issuable in the Form of Global Securities. 01 If
the Company shall establish pursuant to Section 2.02 that the Securities of a
particular series are to be issued in whole or in part as one or more Global
Securities, then the Company shall execute, and the Trustee shall, in accordance
with Section 2.08 and the Company Order delivered to the Trustee thereunder,
authenticate and make available for delivery, one or more Global Securities
which (i) shall represent an aggregate principal amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be represented
by one or more Global Securities, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.13 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository."
02 Notwithstanding any provision of Section 2.10, any Global Security of a
series may be transferred, in whole but not in part, and in the manner provided
in Section 2.10, only to another nominee of the Depository for such series, or
to a successor Depository for such series selected or approved by the Company or
to a nominee of such successor Depository.
03 If at any time the Depository for Securities of a series notifies the
Company that it is unwilling or unable to continue as Depository for Securities
of such series or if at any time the Depository shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, or other applicable
statute or regulation, and a successor Depository 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, this Section 2.13 shall no longer be
applicable to the Securities of such series and the Company will execute, and
the Trustee, upon receipt of an Company Order for the
-12-
authentication and delivery of individual Securities of such series, will
authenticate and make available for delivery, Securities of such series, in
authorized denominations, and in an aggregate principal amount equal to the
aggregate principal amount of the Global Security or Global Securities of such
series in exchange for such Global Security or Global Securities.
The Company may at any time determine that Securities of any series shall
no longer be represented by one or more Global Securities and that the
provisions of this Section 2.13 shall no longer apply to the Securities of such
series. In such event the Company will execute and the Trustee, upon receipt of
an Company Order for the authentication and delivery of individual Securities of
such series, will authenticate and make available for delivery Securities of
such series, in authorized denominations, and in an aggregate principal amount
equal to the aggregate principal amount of the Global Security or Global
Securities of such series in exchange for such Global Security.
If specified by the Company pursuant to Section 2.02 with respect to a
series of Securities, the Depository for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for individual Securities of such series on such terms as are acceptable to the
Company and such Depository. Thereupon, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, without service
charge,
(a) to each person specified by such Depository a new individual
Security or Securities of the same series, of any authorized denomination
as requested by such person in aggregate principal amount equal to and in
exchange for such persons' beneficial interest in the Global Security; and
(b) to such Depository a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of individual Securities
delivered to Holders thereof.
In any exchange provided for in any of the preceding paragraphs of this
Section 2.13, the Company will execute and the Trustee will authenticate and
make available for delivery individual Securities in registered form in
authorized denominations.
Upon the exchange of a Global Security for individual Securities, such
Global Security shall be cancelled by the Trustee. Individual Securities issued
in exchange for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depository for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee.
-13-
The Trustee shall make such Securities available for delivery to the persons in
whose names such Securities are so registered.
ARTICLE II.
2004 SERIES Z BONDS
s.2.1. There shall be a twenty-fourth series of Bonds, known as and
entitled "First Mortgage Bonds, 8.25% Series Z due 2004" or "First Mortgage
Bonds, 8.25% Series Z" (herein and in the Indenture referred to as the "2004
Series Z Bonds"), and the form thereof shall contain suitable provisions with
respect to the matters hereinafter in this Section specified and shall in other
respects be substantially as set forth in the preambles to the Original
Indenture.
The aggregate principal amount of 2004 Series Z Bonds which may be
authenticated and delivered and outstanding under the Indenture is Twenty-Five
Million Dollars ($25,000,000).
The 2004 Series Z Bonds shall bear interest at the rate of 8.25% per annum,
computed on the basis of a 360-day year consisting of twelve 30-day months, and
shall mature on October 1, 2004, subject to prior redemption as described
herein.
The 2004 Series Z Bonds shall be in the form of registered Bonds without
coupons of denominations of Five Thousand Dollars ($5,000) and any integral
multiple thereof which may be authorized by the Company, the issue of a
registered Bond without coupons in any such denomination to be conclusive
evidence of such authorization. The 2004 Series Z Bonds shall be dated as
provided in s.2.05 of the Indenture. All 2004 Series Z Bonds shall bear interest
from their respective dates, such interest to be payable, upon the terms of and
otherwise in accordance with the 2004 Series Z Bonds, semiannually on the first
day of April and October in each year, the first interest payment date being
April 1, 1995. The principal of and the premium, if any, and interest on the
2004 Series Z Bonds shall be payable at the principal office of the Trustee, in
the City of Chicago, Illinois, in any coin or currency of the United States of
America which at the time of payment shall be legal tender for the payment of
public and private debts.
Notwithstanding any other provision of the Indenture or of the 2004 Series
Z Bonds, payments of the principal of and the premium, if any, and interest on
any 2004 Series Z Bond may be made directly to the registered holder thereof
without presentation or surrender thereof or the making of any notation thereon
if there shall be filed with the Trustee a Certificate of the Company to the
effect that such registered holder (or the person for whom such registered
holder is a nominee) and the Company have entered into a written agreement that
payment shall
-14-
be so made; provided, however, that before such registered holder transfers or
otherwise disposes of any 2004 Series Z Bond, such registered holder will, at
its election, either endorse thereon (or on a paper annexed thereto) the
principal amount thereof redeemed and the last date to which interest has been
paid thereon or make such Bond available to the Company at the principal office
of the Trustee for the purpose of making such endorsement thereon.
The 2004 Series Z Bonds shall not be subject to redemption at the option of
the Company, but shall be subject to mandatory redemption pursuant to s.8.08 of
the Indenture in the manner provided in the applicable provisions of Article Ten
of the Indenture, as amended by Article III of this Supplemental Indenture.
The 2004 Series Z Bonds shall be excluded from the benefits of, and shall
not be subject to redemption through the operation of, a Mandatory Sinking Fund
pursuant to s.11.02 of the Indenture and shall also be excluded from the
benefits of the covenants of s.9.08 and s.11.01 of the Indenture. Each holder of
a 2004 Series Z Bond consents and shall be deemed to have consented to the
substance of the amendment to s.9.08 of the Indenture as set forth in Article IV
of this Supplemental Indenture. Such consent shall constitute a fundamental term
of the 2004 Series Z Bonds and this Supplemental Indenture.
Notwithstanding the provisions of s.10.04 or any other provision of the
Indenture, the selection of 2004 Series Z Bonds to be redeemed shall, in case
fewer than all of the outstanding 2004 Series Z Bonds are to be redeemed, be
made by the Trustee pro rata (to the nearest multiple of Five Thousand Dollars
($5,000)) among the registered holders of the 2004 Series Z Bonds in proportion,
as nearly as practicable, to the respective unpaid principal amounts of 2004
Series Z Bonds registered in the names of such holders, with adjustments, to the
extent practicable, to compensate for any prior redemption not made exactly in
such proportion (or otherwise as may be specified by a written order signed by
the registered holders of all outstanding 2004 Series Z Bonds).
The definitive 2004 Series Z Bonds may be issued in the form of engraved
Bonds or Bonds printed or lithographed on steel engraved borders or Bonds in
typed form on normal bond paper. Subject to the foregoing provisions of this
Section and the provisions of s.2.11 of the Indenture, all definitive 2004
Series Z Bonds shall be fully exchangeable for other Bonds of the same series,
of like aggregate principal amounts, and, upon surrender to the Trustee at its
principal office, shall be exchangeable for other Bonds of the same series of a
different authorized denomination or denominations, as requested by the holder
surrendering the same. The Company will execute, and the Trustee
-15-
shall authenticate and deliver, registered Bonds without coupons, whenever the
same shall be required for any such exchange.
s.2.2. 2004 Series Z Bonds in the aggregate principal amount of Twenty-Five
Million Dollars ($25,000,000) may forthwith upon the execution and delivery of
this Supplemental Indenture, or from time to time thereafter, be executed by the
Company and delivered to the Trustee, and shall thereupon be authenticated and
delivered by the Trustee upon compliance by the Company with the provisions of
Articles Four, Five or Six of the Indenture, without awaiting the filing or
recording of this Supplemental Indenture. No additional 2004 Series Z Bonds
shall be issued under Article Four, Five or Six without the consent in writing
of the holders of all the outstanding 2004 Series Z Bonds.
ARTICLE III.
REDEMPTION OF THE 2004 SERIES Z BONDS
s.3.1. The following s.10.65 be and it hereby is added to Article Ten of
the Indenture:
"s.10.65. In the case of the redemption of 2004 Series Z Bonds out of
moneys deposited with the Trustee pursuant to s.8.08, such 2004 Series Z Bonds
shall, upon compliance with provisions of s.10.04, and subject to the provisions
of s.2.1 of the Twenty-Fourth Supplemental Indenture, be redeemable at the
principal amounts thereof, together with interest accrued thereon to the date
fixed for redemption, without premium."
ARTICLE IV.
CONSENT TO AMENDMENT
s.4.1. Each holder of a 2004 Series Z Bond, by holding such 2004 Series Z
Bond, and as a fundamental term of the 2004 Series Z Bonds and this Supplemental
Indenture, consents and shall be deemed to have consented to the substance of
the following amendment to s.9.08 of the Indenture (the 2004 Series Z Bonds
being excluded from the benefit of the covenants in said s.9.08 by operation of
s.2.1 of this Supplemental Indenture):
"Section 9.08 of the Indenture including all indentures supplemental
thereto (in particular, but without limitation, the Thirteenth, Fourteenth,
Fifteenth and Eighteenth Supplemental Indentures) is hereby amended by
deleting subparagraph (1) thereof and inserting in its stead the following:
-16-
(1) The Company may make Stock Payments if and to the extent that, after
giving effect thereto, the aggregate amount of all Stock Payments for the
period from October 1, 1993 to and including the date of the Stock Payment
in question will not exceed the sum of (or difference between, in the event
of a loss) $50,000,000 and the Net Earnings (or loss) of the Company for
such period, taken as one accounting period."
The foregoing consent shall be irrevocable, shall be continuing and in
effect at all times and shall be deemed to be "concurrent" (within the meaning
of s.13.01 of the Indenture) with the writings relating to the foregoing
amendment by or on behalf of all other Bondholders. Further, the foregoing
consent shall survive any transfer, exchange or substitution of any 2004 Series
Z Bond and shall bind all holders thereof and such holders' transferees,
successors, assigns, heirs and legatees. Each holder of a 2004 Series Z Bond
(and such holder's transferees, successors, assigns, heirs and legatees), by
holding such 2004 Series Z Bond, authorizes and shall be deemed to have
authorized the Trustee to sign, in the name of all holders of the 2004 Series Z
Bonds, any consent or authorization deemed necessary or desirable in the
discretion of the Trustee to evidence the foregoing consent (it being understood
and agreed, however, that this s.4.1 shall constitute, for all purposes of the
Indenture, the written consent by the holders of the 2004 Series Z Bonds to the
foregoing amendment without further act or instrument).
ARTICLE V.
MISCELLANEOUS
s.5.1. The Company is lawfully seized and possessed of all the real estate,
franchises and other property described or referred to in the Indenture (except
properties released from the lien of the Indenture pursuant to the provisions
thereof) as presently mortgaged, subject to the exceptions stated therein, such
real estate, franchises and other property are free and clear of any lien prior
to the lien of the Indenture except as set forth in the Granting Clauses of the
Indenture and the Company has good right and lawful authority to mortgage the
same as provided in and by the Indenture.
s.5.2. The Trustee assumes no duties, responsibilities or liabilities by
reason of this Supplemental Indenture other than as set forth in the Indenture,
and this Supplemental Indenture is executed and accepted by the Trustee subject
to all the terms and conditions of its acceptance of the trust under the
Indenture, as fully as if said terms and conditions were herein set forth at
length.
-17-
s.5.3. The terms used in this Supplemental Indenture shall have the
meanings assigned thereto in the Indenture. Reference by number in this
Supplemental Indenture to Articles or Sections shall be construed as referring
to Articles or Sections contained in the Indenture, unless otherwise stated.
s.5.4. As amended and modified by this Supplemental Indenture, the
Indenture is in all respects ratified and confirmed and the Indenture and this
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
s.5.5. Neither the approval by the Board of Public Utilities of the State
of New Jersey of the execution and delivery of this Supplemental Indenture nor
the approval by said Board of the issue of any Bonds under the Indenture shall
in any way be construed as the approval by said Board of any other act, matter
or thing which requires approval of said Board under the laws of the State of
New Jersey; nor shall approval by said Board of the issue of any Bonds under the
Indenture bind said Board or any other public body or authority of the State of
New Jersey having jurisdiction in the premises in any future application for the
issue of Bonds under the Indenture or otherwise.
s.5.6. This Supplemental Indenture may be executed in any number of
counterparts and all said counterparts executed and delivered each as an
original shall constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-18-
NEW JERSEY NATURAL GAS COMPANY HEREBY DECLARES THAT IT HAS READ THIS
TWENTY-FOURTH SUPPLEMENTAL INDENTURE, HAS RECEIVED A COMPLETELY FILLED-IN TRUE
COPY OF IT WITHOUT CHARGE AND HAS SIGNED THIS TWENTY-FOURTH SUPPLEMENTAL
INDENTURE ON THE DATE CONTAINED IN ITS ACKNOWLEDGMENT HEREOF.
IN WITNESS WHEREOF, NEW JERSEY NATURAL GAS COMPANY, party of the first
part, has caused these presents to be signed in its corporate name by its
President or a Vice President and its corporate seal to be hereunto affixed and
attested by its Secretary or an Assistant Secretary, and HARRIS TRUST AND
SAVINGS BANK, party of the second part, in evidence of its acceptance of the
trust hereby created, has caused these presents to be signed in its corporate
name by one of its Vice Presidents and its corporate seal to be hereunto affixed
and attested by its Secretary or one of its Assistant Secretaries.
NEW JERSEY NATURAL GAS COMPANY
By___________________________________
Name: F.X. Colford
Title: Senior Vice President
[Corporate Seal]
Attest:
- - ----------------------------------
Oleta J. Harden
Secretary
Signed, sealed and delivered by
NEW JERSEY NATURAL GAS COMPANY
in the presence of:
- - ----------------------------------
Name:
- - ----------------------------------
Name:
-19-
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By____________________________
Name: J. Bartolini
Title: Vice President
[Corporate Seal]
Attest:
- - ----------------------------------
Name:
Title:
Signed, sealed and delivered by
HARRIS TRUST AND SAVINGS BANK
in the presence of:
- - ----------------------------------
Name:
- - ----------------------------------
Name:
-20-
STATE OF NEW JERSEY:
SS:
COUNTY OF MONMOUTH :
BE IT REMEMBERED that on this ___ day of October 1994, before me, the
subscriber, a Notary Public of the State of New Jersey, and I hereby certify
that I am such a Notary Public as witness my hand, personally appeared Oleta J.
Harden to me known who, being by me duly sworn according to law, on her oath,
does depose and make proof to my satisfaction that she is the Secretary of NEW
JERSEY NATURAL GAS COMPANY, the grantor or mortgagor in the foregoing
Supplemental Indenture named; that she well knows the seal of said corporation;
that the seal affixed to said Supplemental Indenture is the corporate seal of
said corporation, and that it was so affixed in pursuance of resolutions of the
Board of Directors (including the Executive Committee of said Board) of said
corporation; that F.X. Colford is the Senior Vice President of said corporation;
that she saw said F.X. Colford, as such Senior Vice President, affix said seal
thereto, sign and deliver said Supplemental Indenture, and heard him declare
that he signed, sealed and delivered the same as the voluntary act and deed of
said corporation, in pursuance of said resolutions, and that this deponent
signed her name thereto, at the same time, as attesting witness.
--------------------------
Oleta J. Harden
Secretary
Subscribed and sworn to before me,
a Notary Public of the State of
New Jersey, at Wall, New Jersey,
the day and year aforesaid.
- - ------------------------------------
Name: Timothy C. Hearne
Notary Public of the
State of New Jersey
-21-
STATE OF ILLINOIS:
SS:
COUNTY OF COOK :
BE IT REMEMBERED that on this ____ day of October 1994, before me, the
subscriber, a Notary Public of the State of Illinois, personally appeared M.
Onischak to me known who, being by me duly sworn according to law, on her oath,
does depose and make proof to my satisfaction that she is an Assistant Secretary
of HARRIS TRUST AND SAVINGS BANK, the grantee or mortgagee and trustee in the
foregoing Supplemental Indenture named; that she well knows the seal of said
corporation; that the seal affixed to said Supplemental Indenture is the
corporate seal of said corporation, and that it was so affixed in pursuance of a
resolution of the Board of Directors of said corporation; that J. Bartolini is a
Vice President of said corporation; that she saw said J. Bartolini as such Vice
President affix said seal thereto, sign and deliver said Supplemental Indenture,
and heard said J. Bartolini declare that she signed, sealed and delivered the
same as the voluntary act and deed of said corporation, in pursuance of said
resolution, and that this deponent signed her name thereto, at the same time, as
attesting witness.
---------------------------
Name: M. Onischak
Title: Assistant Secretary
Subscribed and sworn to before
me a Notary Public of the State
of Illinois at Chicago, the day
and year aforesaid.
- - --------------------------------------
Notary Public of the State of Illinois
[SEAL]
-22-