EXHIBIT 4.10(c)
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TWENTY-SECOND SUPPLEMENTAL INDENTURE
Dated as of July 29, 1997
BY AND AMONG
ATMOS ENERGY CORPORATION
and
FIRST TRUST NATIONAL ASSOCIATION
and
XXXXXXX X. XXXXXXX
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
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THIS TWENTY-SECOND SUPPLEMENTAL INDENTURE, dated as of July 29, 1997, is
made by and among ATMOS ENERGY CORPORATION, a corporation organized under the
laws of the State of Texas (hereinafter sometimes referred to as "Atmos"), whose
address is 1800 Three Lincoln Center, 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx 00000,
FIRST TRUST NATIONAL ASSOCIATION, a national banking association having its
offices at One Illinois Center, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 (hereinafter sometimes referred to as "First Trust"), and Xxxxxxx
X. Xxxxxxx, residing in the Village of Frankfort, Illinois.
RECITALS:
The background of this Twenty-Second Supplemental Indenture is:
1. United Cities Gas Company, a corporation organized under the laws of
the State of Illinois and the Commonwealth of Virginia (hereinafter sometimes
referred to as "UCG"), heretofore executed and delivered to City National Bank
and Trust Company of Chicago and R. Xxxxxx Xxxxxx, as Trustees, its Indenture of
Mortgage dated as of July 15, 1959 (hereinafter sometimes referred to as the
"Original Indenture"), providing for the issuance thereunder from time to time
of First Mortgage Bonds of UCG, issuable in one or more series, and wherein and
whereby UCG did grant, convey, mortgage, warrant to, the said Trustees, and each
of them, and their respective successors and assigns, and create a security
interest in certain property of UCG in said Original Indenture as more
particularly described therein for the security of all First Mortgage bonds
issued and to be issued thereunder.
2. UCG has heretofore executed and delivered twenty-one supplemental
indentures to the Original Indenture, designated as First through Twenty-First
(the Original Indenture and all supplemental indentures, including this
Twenty-Second Supplemental Indenture, are hereinafter referred to as the
"Indenture"), for the purpose of subjecting to the lien of the Indenture certain
additional property heretofore and hereafter acquired by UCG, creating
additional series of First Mortgage Bonds, and amending and supplementing the
Indenture in certain respects.
3. There have been issued under the Indenture various series of First
Mortgage Bonds designated as Series A through V, inclusive, of which
$115,000,000 in aggregate principal amount are outstanding as of June 30, 1997.
The bonds of Series X, X, X, X, X, X, X, X, X, X, X, X, X, 0 and S have been
retired as of June 30, 1997.
4. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Illinois National Bank and Trust Company of
Chicago, formerly known as Continental Bank, National Association, a national
banking association, which changed from a national banking association to an
Illinois state bank on June 29, 1994, and is now known as Bank of America
Illinois ("BAI"). BAI and certain of its affiliates entered into a Purchase and
Assumption Agreement with First Bank National Association, the parent company of
First Trust, which provided that First Bank National Association, or an
affiliate, would purchase substantially all of the Illinois trust and agency
appointments of BAI, including the appointment under the Indenture. First Trust
and BAI thereupon entered into an Instrument of Transfer and Assignment of
certain Illinois appointments from BAI to First Trust, which provided for the
succession by First Trust of substantially all of the Illinois trust and agency
appointments of BAI, including the Indenture.
5. The Twenty-First Supplemental Indenture dated as of February 5,
1997, was executed, delivered, acknowledged and recorded by UCG, First Trust and
BAI, to give notice to all persons that the power to act as Trustee and all
right, title and interest of BAI to all estate, properties, rights, powers and
trusts under the Indenture is now vested in First Trust.
6. On October 15, 1966, Xxx X. Xxxxx became individual trustee under
the Indenture as successor to R. Xxxxxx Xxxxxx who resigned. On March 15, 1981,
X. X. Xxxxxx became individual trustee under the Indenture as successor to Xxx
X. Xxxxx who resigned. On February 5, 1997, Xxxxxxx X. Xxxxxxx became individual
trustee under the Indenture as successor to X. X. Xxxxxx who resigned.
7. Pursuant to an Agreement and Plan of Reorganization dated July 19,
1996, as amended by Amendment No. 1 to the Agreement and Plan of Reorganization
dated October 3, 1996, and the Plan of Merger provided for therein, UCG will be
merged with and into Atmos in a statutory merger to become effective under the
laws of the State of Illinois, the State of Texas and the Commonwealth of
Virginia, with Atmos to be the surviving corporation and the successor to UCG
(the "Merger"). Atmos agrees that at the effective time of the Merger (the
"Effective Time"), pursuant to the terms and provisions contained in the
Indenture, it will assume (i) the due and punctual payment of the principal and
interest of the First Mortgage Bonds secured by the Indenture, and (ii) the
performance of all covenants and conditions under the Indenture.
8. In addition, Atmos agrees that effective as of the Effective Time
the Indenture will be amended as hereinafter set forth and Atmos will not
certify or issue any additional First Mortgage Bonds under the Indenture as
hereinafter set forth.
9. UCG has obtained and filed with the Trustees the written consent of
the holders of the requisite percentage of the outstanding First Mortgage Bonds
to the amendments to the Indenture herein contained. All acts and things
necessary to make this Twenty-Second Supplemental Indenture a valid and binding
instrument effective as of the Effective Time in accordance with its terms and
for the purposes herein expressed, have been done and performed.
10. Atmos represents to the Trustees that at the time of the Merger and
after giving effect thereto, no "event of default" (as defined in Section 6.01
of the Indenture) shall or would exist.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to Atmos duly paid by the Trustees at or before the ensealing and
delivery hereof and for other good and valuable considerations, the receipt
whereof is hereby acknowledged, Atmos hereby covenants to and with the Trustees
and their successors in the trusts under the Indenture, for the equal and pro
rata benefit of all present and future holders of all First Mortgage Bonds
issues, and of the coupons, if any, thereto appertaining, without any
preference, priority or distinction whatsoever, as follows:
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ARTICLE ONE
SUBSTITUTION OF SUCCESSOR CORPORATION
Section 1.01. Assumption of Indenture Obligations. Effective as of the
Effective Time, Atmos, as successor to UCG, assumes the due and punctual payment
of the principal of and interest and premium on the First Mortgage Bonds secured
by the lien of the Indenture and the performance of all the covenants and
conditions contained in the Indenture on the part of UCG.
Section 1.02. Mortgage of Property. Atmos, in order to better secure the
principal of and interest and premium on the First Mortgage Bonds at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions contained in the
Indenture, does hereby mortgage, assign, grant, bargain, sell and convey unto
the Trustees and to their successors in said trust, forever, all of the
property, rights and franchises owned by UCG immediately prior to the Effective
Time which are subject to the lien of the Indenture including the properties
described in Schedule 1 attached hereto and hereby made a part hereof. The
Indenture shall not by reason of the Merger, or otherwise, constitute or become
a lien upon, and the term "mortgaged property" as used in the Indenture shall
not include or comprise:
(1) Any property or franchises owned prior to the Effective Time
by Atmos or which, prior to the Effective Time, were not subject to the
lien of the Indenture; and
(2) Any property or franchises which may be purchased, constructed
or otherwise acquired by Atmos after the Effective Time; excepting only
betterments, extensions, improvements, additions, repairs, renewals,
replacements, substitutions and alterations of, to, upon and for, and
comprising and constituting appurtenances of, or fixtures to, the property
subject to the lien of the Indenture immediately prior to the Effective
Time, and renewals, modifications or substitutions of or for contracts
mortgaged under the Indenture immediately prior to the Effective Time,
which may be purchased, constructed, or otherwise acquired by Atmos from
and after the Effective Time, which shall be and become subject to the
lien and operation of the Indenture, notwithstanding the Merger.
Atmos pursuant to Section 8.02(2) of the Indenture does hereby mortgage, assign,
grant, bargain, sell and convey unto the Trustees and their successors the
following properties acquired by Atmos on or after the Effective Time, to wit:
all betterments, extensions, improvements, additions, repairs, renewals,
replacements, substitutions and alterations of, to, upon and for, and
comprising and constituting appurtenances of, or fixtures to, the property
subject to the lien of the Indenture immediately prior to the Effective
Time, and renewals, modifications or substitutions of or for contracts
mortgaged under the Indenture immediately prior to the Effective Time,
which may be
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purchased, constructed, or otherwise acquired by Atmos from and after the
Effective Time, which shall be and become subject to the lien and
operation of the Indenture, notwithstanding the Merger.
Subject to such liens and encumbrances as are of the character specified
in Section 3.09 of the Indenture, as amended by this Twenty-Second Supplemental
Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not specifically
pledged under the Indenture;
B. All stocks, bonds and securities not specifically pledged under the
Indenture;
C. All merchandise held for resale and consumable materials and
supplies (other than Cushion Gas as defined in clause (c) of Section 5.01 of the
Sixteenth Supplemental Indenture to the Original Indenture);
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment (excluding any such
inventory constituting a part of the operating system).
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by Atmos, as aforesaid, or intended so to be, unto the
Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same conditions
as are set forth in the Indenture, without preference or priority of any series
of bonds or of any bonds within a series over any of the other bonds by reason
of priority of time of maturity or of the negotiation thereof or otherwise.
ARTICLE TWO
AMENDMENTS TO INDENTURE
Section 2.01. Amendments to Section 3.09 of the Indenture. (a) Section
3.09 of the Indenture is amended effective as of the Effective Time by adding a
new subsection (p) which shall read in its entirety as follows:
(p) any mortgage, pledge, encumbrance, lien or charge of any kind on
(i) properties or assets of any character owned by Atmos immediately prior
to the Effective Time, or (ii) any properties or assets of any character
acquired by the Company on or after the Effective Time, except any after
acquired properties or assets which constitute "mortgaged property"
subject to the lien of this Indenture.
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(b) Subsection 3.09(n) is amended effective as of the Effective Time
by deleting the word "and" after the semicolon at the end of the
Subsection.
(c) Subsection 3.09(o) is amended effective as of the Effective Time
by replacing the period (.) at the end of the Subsection with "and.".
Section 2.02. Amendment to Section 3.13 of the Indenture. The figure
"$500" appearing in the first sentence of Section 3.13 of the Indenture is
amended effective as of the Effective Time to read "$200,000".
Section 2.03. Amendment to Section 3.14 of the Indenture. The figure
"$5,000" appearing twice in Section 3.14 of the Indenture is amended effective
as of the Effective Time in each place to read "$200,000".
Section 2.04. Amendment to Section 3.15 of the Indenture. (a) The figure
"$20,000" appearing in Section 3.15 of the Indenture is amended effective as of
the Effective Time to read "$2,000,000".
(b) The figure "$990,000" appearing in Section 3.15 of the Indenture
is amended effective as of the Effective Time to read "$5,000,000".
Section 2.05. Addition of Section 3.19. Effective as of the Effective
Time, the following provision shall be added to Article 3 of the Indenture as
Section 3.19 immediately following Section 3.18 of the Indenture and shall read
in its entirety as follows:
Section 3.19. The aggregate principal amount of all of the
Company's Secured Indebtedness outstanding shall not at any time
exceed thirty percent (30%) of the Net Property of the Company. For
the purposes of this Section 3.19, "Net Property" shall mean the
aggregate amount of the assets of the Company includible in the
categories of "property, plant and equipment" less the amount of
accumulated depreciation and amortization attributable to such
assets, that is reflected on the Company's balance sheet prepared in
accordance with generally accepted accounting principles,
consistently applied, and "Secured Indebtedness" shall mean
indebtedness of the Company for money borrowed and secured by a lien
upon the property of the Company.
Section 2.06. Amendment to Section 7.02(d) of the Indenture. The figure
"$5,000" appearing twice in Section 7.02(d) of the Indenture is amended
effective as of the Effective Time in each place to read "$200,000".
Section 2.07. Amendments to Section 12.05 of the Indenture. Section 12.05
is amended effective as of the Effective Time as follows:
(a) Subsection (t) of Section 12.05 shall be restated in its
entirety to read as follows:
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(t) "Prior Liens" means any mortgages or other
instruments constituting a lien upon property hereafter
acquired by the Company prior to the lien of this Indenture;
provided, however, that Prior Liens shall not include any
liens on properties, (i) owned by Atmos immediately prior to
the Effective Time, or (ii) acquired by the Company after the
Effective Time, except any after acquired properties which
constitute "mortgaged property" subject to the lien of this
Indenture.
(b) The following new Subsections (v), (w), (x), (y) and (z)
are added to Section 12.05 following Subsection (u):
(v) "Atmos" means Atmos Energy Corporation, a
corporation organized under the laws of the State of Texas
immediately prior to the Effective Time and organized under
the laws of the State of Texas and Commonwealth of Virginia on
and after the Effective Time.
(w) "Effective Time" shall have the meaning set forth in
Recital 7 of the Twenty-Second Supplemental Indenture.
(x) "Merger" shall have the meaning set forth in Recital
7 of the Twenty-Second Supplemental Indenture.
(y) "Net Property" shall have the meaning set forth in
Section 2.05 of the Twenty-Second Supplemental Indenture.
(z) "Secured Indebtedness" shall have the meaning set
forth in Section 2.05 of the Twenty-Second Supplemental
Indenture.
ARTICLE THREE
AGREEMENT NOT TO ISSUE ADDITIONAL
FIRST MORTGAGE BONDS UNDER THE INDENTURE
On and after the Effective Time, Atmos hereby agrees not to certify or
issue any additional First Mortgage Bonds or series of First Mortgage Bonds
under the terms and provisions of the Indenture, including but not limited to,
Sections 1.01, 2.02 and 2.03, except as to transfers, substitutions and
exchanges of First Mortgage Bonds provided for in the Indenture with respect to
First Mortgage Bonds outstanding immediately prior to the Effective Time.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Incorporation of Original Indenture. This Twenty-Second
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms used in this Twenty-Second Supplemental
Indenture which are defined in the Original Indenture shall, unless the context
otherwise requires, have the meanings set forth in the Original Indenture.
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Section 4.02. Successors and Assigns. Whenever in this Twenty-Second
Supplemental Indenture any of the parties hereto is named or referred to, this
shall be deemed to include the successors or assigns of such party, and all the
covenants and agreements in this Twenty-Second Supplemental Indenture contained
shall bind and inure to the benefit of the respective successors and assigns of
such parties, whether so expressed or not.
Section 4.03. Multiple Counterparts. This Twenty-Second Supplemental
Indenture may be simultaneously 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.
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IN WITNESS WHEREOF, said ATMOS ENERGY CORPORATION has caused its corporate
name to be hereunto subscribed by its Vice President and its corporate seal to
be hereunto affixed and attested by an Assistant Secretary, and said FIRST TRUST
NATIONAL ASSOCIATION, to evidence its acceptance of the trust hereby created and
in it reposed, has caused its corporate name to be hereunto subscribed by its
Vice President and its corporate seal to be affixed and attested by an Assistant
Secretary, and said Xxxxxxx X. Xxxxxxx, to evidence his acceptance of the trust
hereby created and in him reposed, has hereunto subscribed his name and affixed
his seal, all as of the day and year first above written.
ATMOS ENERGY CORPORATION
[CORPORATE SEAL] By /s/ XXXX X. XXXXXXXX
----------------------
Xxxx X. Xxxxxxxx
Vice President
ATTEST:
By /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxx
Assistant Secretary
Witnesses as to Atmos Energy Corporation:
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
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FIRST TRUST NATIONAL
ASSOCIATION, TRUSTEE
[CORPORATE SEAL]
By /s/ XXXXX SGARGALINO
-------------------------
Xxxxx Xxxxxxxxxx, Vice President
ATTEST:
/s/ XXXXX XXXX
------------------------------
Witnesses as to First Trust
National Association:
/s/ XXXXXX XXXXXX
-------------------------------
/s/ XXXXXX XXXXXXX
-------------------------------
XXXXXXX X. XXXXXXX, INDIVIDUAL
TRUSTEE
/s/ XXXXXXX X. XXXXXXX
-------------------------------------
ATTEST:
/s/ XXXXX XXXX
--------------------------
Witnesses to Xxxxxxx X. Xxxxxxx:
/s/ XXXXXX XXXXXX
--------------------------
/s/ XXXXXX XXXXXXX
--------------------------
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STATE OF TEXAS )
) SS.
COUNTY OF DALLAS )
I, Xxxxx X. Xxxxxxx,, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this ______ day of July, 1997, personally
appeared before me Xxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who being by me duly sworn, did say that
they are the Vice President and the Assistant Secretary, respectively, of Atmos
Energy Corporation, a corporation organized under the laws of the State of
Texas, that the seal affixed to the above and foregoing instrument is the
corporate seal of said corporation and that said instrument was signed by them
and sealed and delivered on behalf of said corporation by authority of its Board
of Directors duly given, and the said Xxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx
acknowledged said instrument to be their free and voluntary act and deed and the
free and voluntary act and deed of said corporation for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 22 day of
July, 1997.
/s/ XXXXX X. XXXXXXX
-----------------------------
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, Xxxxxxx Xxxxxxx, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 23rd day of July, 1997, personally
appeared before me Xxxxx Sgaraghno and Xxxxx Xxxx, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who being by me duly sworn, did say that they are the Vice
President and the Assistant Secretary, respectively, of First Trust National
Association, a national banking association organized and existing under the
national banking laws of the United States of America, that the seal affixed to
the above and foregoing instrument is the corporate seal of said association and
that said instrument was signed by them and sealed and delivered on behalf of
said association by authority of its Board of Directors duly given, and the said
Xxxxx Xxxxxxxxxx and Xxxxx Xxxx acknowledged said instrument to be their free
and voluntary act and deed and the free and voluntary act and deed of said
association for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal this 23rd day
of July, 1997.
/s/ XXXXXXX XXXXXXX
-----------------------------------
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, Xxxxxxx Xxxxxxx, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 23rd day of July, 1997, personally
appeared before me Xxxxxxx X. Xxxxxxx, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument as
his free and voluntary act and deed for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
23rd day of July, 1997.
/s/ XXXXXXX XXXXXXX
-----------------------------------
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires: 12/02/2000
STATE OF TEXAS )
) SS.
COUNTY OF DALLAS )
Personally appeared before me Xxxxxxx X. Xxxxxxxx who, being duly sworn,
says that she saw the corporate seal of ATMOS ENERGY CORPORATION affixed to the
foregoing instrument and that she also saw Xxxx X. Xxxxxxxx, Vice President and
Xxxxxxx X. Xxxxxx, Assistant Secretary of said Atmos Energy Corporation, sign
and attest the same, and that she with Xxxx Xxxxxxxx, witnessed the execution
and delivery thereof as the act and deed of said Atmos Energy Corporation.
/s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 22 day of July, 1997.
/s/ XXXXX X. XXXXXXX
---------------------------------------
Notary Public in and for the County and
State aforesaid:
My commission expires:
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
Personally appeared before me Xxxxxx Xxxxxx, who, being duly sworn, says
that she saw the corporate seal of the FIRST TRUST NATIONAL ASSOCIATION affixed
to the foregoing instrument and that she also saw Xxxxx Xxxxxxxxxx, Vice
President and Xxxxx Xxxx, Assistant Secretary of said FIRST TRUST NATIONAL
ASSOCIATION, sign and attest the same, and that she, with Xxxxxx Xxxxxxx,
witnessed the execution and delivery thereof as the act and deed of the said
First Trust National Association.
/s/ XXXXXX XXXXXX
-----------------------------------
[NOTARIAL SEAL] Witness
Sworn to before me this 23rd day of July, 1997.
/s/ XXXXXXX XXXXXXX
----------------------------------------
Notary Public in and for the County and
State aforesaid
My commission expires: 12/02/2000
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
Personally appeared before me Xxxxxx Xxxxxxx, who, being duly sworn, says
that she saw the within named Xxxxxxx X. Xxxxxxx sign, seal, and as his act and
deed, deliver the foregoing instrument and that she, with Xxxxxx Xxxxxx,
witnessed the execution thereof.
/s/ XXXXXX XXXXXXX
-----------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this day of July, 1997.
/s/ XXXXXXX XXXXXXX
---------------------------------------
Notary Public in and for the County and
State aforesaid
My Commission expires: 12/02/2000
This Document was Prepared by:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
SCHEDULE 1
TO TWENTY-SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JULY 29, 1997
Descriptions of Additional Mortgaged Property
The following gas distribution systems acquired by the Company, together
with all pipelines, mains, connection, service pipes, fittings, meters,
regulators, regulator stations and buildings, tools, instruments, appliances,
apparatus, facilities, machinery and other property used or provided for use, in
the construction, maintenance, repair or operation thereof and together also
with all of the rights, privileges, rights-of-way, franchises, licenses,
easements, grants and permits with respect to the construction, maintenance,
repair and operation of such gas distribution systems:
1. The operating system of Xxxxx Natural Gas acquired by the
Company located in the county of Neosho, Kansas.
2. The operating system of Palmyra Natural Gas System acquired by
the Company located in the county of Xxxxxx, Missouri.
3. The operating system of Monarch Gas Company acquired by the
Company by merger located in the counties of Fayette,
Illinois, and Effingham, Illinois.
