EXHIBIT 4(d)
DELTA NATURAL GAS COMPANY, INC.
AND
FIFTH THIRD BANK,
TRUSTEE
----------------------
INDENTURE
DATED AS OF NOVEMBER 1, 2002
----------------------
$20,000,000
____% DEBENTURES
DUE DECEMBER 1, 2022
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TABLE OF CONTENTS
ARTICLE SECTION HEADING PAGE
1 DEFINITIONS AND INCORPORATION
BY REFERENCE.....................................1
1.01 Definitions......................................1
1.02 Incorporation by Reference of
Trust Indenture Act............................5
1.03 Rules of Construction............................6
2 THE DEBENTURES...................................6
2.01 Form and Dating..................................6
2.02 Execution and Authentication.....................6
2.03 Registrar and Paying Agent.......................7
2.04 Paying Agent to Hold Money in
Trust..........................................7
2.05 Debentureholder Lists............................7
2.06 Transfer and Exchange............................8
2.07 Replacement Debentures...........................8
2.08 Outstanding Debentures...........................9
2.09 Treasury Debentures..............................9
2.10 Temporary Debentures.............................9
2.11 Cancellation.....................................9
2.12 Defaulted Interest...............................9
2.13 Persons Deemed Owners...........................10
3 REDEMPTION OF DEBENTURES AT
CORPORATION'S OPTION..........................10
3.01 Redemption Right at
Corporation's Option..........................10
3.02 Notices to Trustee..............................10
3.03 Selection of Debentures to be
Redeemed......................................11
3.04 Notice of Redemption............................11
3.05 Effect of Notice of Redemption..................12
3.06 Deposit of Redemption Price.....................12
3.07 Debentures Redeemed in Part.....................12
3.08 Corporation's Right to Withdraw
Redemption Election...........................12
4 REDEMPTION OF DEBENTURES AT
DEBENTUREHOLDER'S OPTION........................12
4.01 Redemption Right at
Debentureholder's Option......................12
5 COVENANTS.......................................13
5.01 Payment of Debentures...........................13
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5.02 Reporting.......................................13
5.03 Corporate Existence.............................13
5.04 Payment of Taxes and Other
Claims........................................13
5.05 Limitation on Certain Funded
Indebtedness..................................14
5.06 Limitations on Dividends and
Other Payments on Stock.......................14
5.07 Limitation on Secured
Indebtedness..................................14
5.08 Compliance Certificate..........................15
5.09 Default Certificate.............................16
6 SUCCESSORS......................................16
6.01 When Corporation May Merge, etc.................16
7 DEFAULTS AND REMEDIES...........................16
7.01 Events of Default...............................16
7.02 Acceleration....................................18
7.03 Other Remedies..................................18
7.04 Waiver of Past Defaults.........................18
7.05 Control by Majority.............................19
7.06 Limitation on Suits.............................19
7.07 Rights of Holders to Receive
Payment.......................................19
7.08 Collection Suit by Trustee......................20
7.09 Trustee May File Proofs of
Claim.........................................20
7.10 Priorities......................................20
7.11 Undertaking for Costs...........................20
7.12 Waiver of Stay or Extension
Laws..........................................21
7.13 Restoration of Rights and
Remedies......................................21
7.14 Record Date for Vote of
Debentureholders..............................21
8 TRUSTEE.........................................21
8.01 Duties of Trustee...............................21
8.02 Rights of Trustee...............................22
8.03 Individual Rights of Trustee....................23
8.04 Trustee's Disclaimer............................23
8.05 Notice of Defaults..............................23
8.06 Reports by Trustee to Holders...................23
8.07 Compensation and Indemnity......................23
8.08 Replacement of Trustee..........................24
8.09 Successor Trustee by Merger, etc................25
8.10 Eligibility; Disqualification...................25
8.11 Preferential Collection of
Claims Against Corporation....................25
8.12 Appointment of Co-Trustee.......................25
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9 DISCHARGE OF INDENTURE..........................26
9.01 Termination of Corporation's
Obligations...................................26
9.02 Application of Trust Money......................27
9.03 Repayment to Corporation........................27
10 AMENDMENTS, SUPPLEMENTS AND
WAIVERS.......................................28
10.01 Without Consent of Holders......................28
10.02 With Consent of Holders.........................28
10.03 Compliance with Trust Indenture
Act...........................................28
10.04 Revocation and Effect of
Consents......................................29
10.05 Notation on or Exchange of
Debentures....................................29
10.06 Trustee Protected...............................29
11 MISCELLANEOUS...................................29
11.01 Trust Indenture Act Controls....................29
11.02 Notices.........................................29
11.03 Communication by Holders with
Other Holders.................................30
11.04 Certificate and Opinion as to
Conditions Precedent..........................30
11.05 Statements Required in
Certificate or Opinion........................30
11.06 Rules by Trustee and Agent......................31
11.07 Legal Holidays..................................31
11.08 No Recourse Against Others......................31
11.09 Duplicate Originals.............................31
11.10 Governing Law...................................31
11.11 Table of Contents, Headings, etc................31
SIGNATURES..................................................................32
EXHIBIT A -- FORM OF GLOBAL SECURITY.......................................A-1
EXHIBIT B -- FORM OF DEBENTURE.............................................B-1
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INDENTURE
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THIS INDENTURE dated as of November 1, 2002, between DELTA NATURAL
GAS COMPANY, INC., a Kentucky corporation ("Corporation"), and FIFTH THIRD
BANK, an Ohio banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Corporation's ____%
Debentures Due December 1, 2022 ("Debentures"):
ARTICLE 1 - DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Corporation.
"AGENT" means any Registrar, Paying Agent or co-registrar or agent
for service of notices and demands.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal
or State law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors of the
Corporation or any authorized committee of the Board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect.
"CAPITAL STOCK" means any and all shares, interests, participations
or other equivalents (however designated) of corporate stock.
"COMMON STOCK" means the common stock, par value $1 per share, of
the Corporation as the same exists at the date of this Indenture or as such
stock shall be constituted from time to time.
"CONSOLIDATED", when used in connection with any accounting terms,
means the Corporation and its Subsidiaries, the financial statements of
which are consolidated in accordance with generally accepted accounting
principles.
"CONSOLIDATED FUNDED INDEBTEDNESS" means the outstanding Funded
Indebtedness of the Corporation and its Consolidated Subsidiaries (excluding
in all cases Funded Indebtedness owing to the Corporation or Consolidated
Subsidiaries); provided, however, that if the
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Corporation owns, directly or indirectly, less than all of the voting stock
of a Consolidated Subsidiary, only that portion of the Funded Indebtedness
of such Consolidated Subsidiary equal to the proportion of its outstanding
voting stock owned (directly or indirectly) by the Corporation shall be
included in determining Consolidated Funded Indebtedness.
"CONSOLIDATED NET UTILITY FIXED ASSETS" means the aggregate value
of Utility Fixed Assets of the Corporation and its Consolidated Subsidiaries
less accumulated depreciation, determined on a consolidated basis in
accordance with generally accepted accounting principles applied in a manner
consistent with the most recent audited financial statements included in
reports delivered to the Trustee pursuant to Section 5.02 hereof; provided,
however, that if the Corporation owns, directly or indirectly, less than all
of the outstanding voting stock of a Consolidated Subsidiary, only that
portion of the Utility Fixed Assets of such Consolidated Subsidiary equal to
the proportion of its outstanding voting stock owned by the Corporation
shall be included in determining Consolidated Net Utility Fixed Assets.
"CONSOLIDATED TANGIBLE NET WORTH" means an amount equal to the
stockholders' ownership of the Corporation and its Consolidated Subsidiaries
(including capital stock, capital in excess of par value and retained
earnings, but eliminating any unpaid amounts due for sale of stock) less
intangible assets, all determined on a consolidated basis in accordance with
generally accepted accounting principles applied in a manner consistent with
the most recent audited financial statements included in reports delivered
to the Trustee pursuant to Section 5.02 hereof.
"CORPORATE TRUST OFFICE" means the office of the Trustee located in
Cincinnati, Ohio, at which at any time its corporate trust business shall be
principally administered, which office at the date of execution of this
Indenture is located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000,
Attention: Corporate Trust Administration.
"CORPORATION" means the party named as such above until a successor
replaces it pursuant to the applicable provisions of the Indenture and
thereafter means the successor.
"CURRENT INDEBTEDNESS" of a Person means, as of the date of
determination thereof, all Indebtedness maturing on demand or not more than
one year after the date as of which such determination is made (excluding
any Indebtedness renewable or extendible at the option of the debtor,
absolutely or conditionally, for a period or periods ending more than one
year after the date of such determination, whether or not theretofore
extended or renewed), fixed sinking fund payments (except to the extent that
funds for the payment thereof shall have been deposited with a trustee for
the application thereof) and other prepayments required to be made with
respect to any Indebtedness not more than one year after such date, and all
other items (including taxes accrued as estimated) which in accordance with
generally accepted accounting principles would be included as current
indebtedness.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEBENTURE" means the Debentures described above as issued under
this Indenture.
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"DEFAULT" means any event which is, or after notice or passage of
time would be, an Event of Default.
"DEPOSITORY" means The Depository Trust Company in the City of New
York and any successor to such Person.
"EVENT OF DEFAULT" shall have the meaning assigned such term in
Section 7.01 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as from
time to time amended.
"FUNDED INDEBTEDNESS" means all Indebtedness other than Current
Indebtedness.
"GLOBAL SECURITY" means a security evidencing all of the Debentures
issued to the Depository or its nominee and registered in the name of the
Depository or its nominee.
"HOLDER" OR "DEBENTUREHOLDER" means a person in whose name a
Debenture is registered; provided, however, that for purposes of Sections
7.06 and 7.07 hereof, such terms shall also include the Beneficial Owner (as
defined in the Debenture) of any Debenture.
"INDEBTEDNESS" of a Person means (i) all items of indebtedness or
liability which in accordance with generally accepted accounting principles
would be included in determining total liabilities as shown on the liability
side of a balance sheet as at the date as of which indebtedness is to be
determined, (ii) indebtedness upon which the Person whose indebtedness is
being determined customarily pays interest charges and indebtedness secured
by any mortgage, pledge or lien existing on property owned by such Person,
whether or not the indebtedness secured thereby shall have been assumed but,
if (a) any such indebtedness shall not have been assumed or guaranteed by
such Person, (b) such Person customarily does not pay any interest thereon,
and (c) such mortgage, pledge or lien was created by others upon lands over
which such Person has an easement or right of way, such indebtedness shall
not be deemed to be Indebtedness of such Person except to the extent of the
larger of the fair value or cost to such Person of such property (including
any improvements thereon) covered by such mortgage, pledge or lien, and
(iii) guaranties, endorsements (other than for purposes of collection in the
ordinary course of business) and other contingent obligations in respect of,
or to purchase or otherwise acquire, indebtedness of others.
"INDENTURE" means this Indenture as amended from time to time.
"INTEREST PAYMENT DATE" means March 1, June 1, September 1 and
December 1 of each year commencing March 1, 2003 through and including
December 1, 2022.
"LEGAL HOLIDAY" means a Saturday, a Sunday, or a day on which
banking institutions in Cincinnati, Ohio, are not required to be open.
"LIEN" means any lien, mortgage, pledge, security interest, charge
or other encumbrance of any kind.
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"OFFICER" means the chief executive officer, principal financial
officer, principal accounting officer or President of the Corporation.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers
of the Corporation.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
may be an employee of or counsel to the Corporation or the Trustee and who
is reasonably acceptable to the Trustee.
"PAYING AGENT" shall have the meaning assigned such term in Section
2.03 hereof.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other legal entity.
"PRINCIPAL" of the Debenture means the principal of the Debenture
plus the premium, if any, on the Debenture.
"QUALIFIED INSTITUTION" means a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company located in the United
States.
"RECORD DATE" means February 15, May 15, August 15 and November 15
(as applicable).
"REDEMPTION DATE" when used with respect to any Debenture to be
redeemed means the date fixed for such redemption pursuant to this
Indenture.
"REDEMPTION PRICE" when used with respect to any Debenture to be
redeemed means the price at which it is to be redeemed pursuant to this
Indenture and the Debenture.
"REGISTRAR" shall have the meaning assigned such term in Section
2.03 hereof.
"SEC" means the Securities and Exchange Commission.
"SPECIAL RECORD DATE" means the date set by the Corporation for
determination of Debentureholders of record for purposes of paying any
defaulted interest.
"SUBSIDIARY" means a corporation at least the majority of whose
voting stock is owned (directly or indirectly) by the Corporation.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date shown or, in the case of any
amendment or supplement to this Indenture, as in effect on the date of any
such amendment or supplement.
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"TRUSTEE" means the party named as such above until a successor
replaces it pursuant to the applicable provisions of the Indenture and
thereafter means the successor.
"TRUST OFFICER" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"UNITED STATES" means the United States of America.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the United States the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or
redeemable at the option of the issuer thereof.
"UTILITY FIXED ASSETS" means all physical property owned by the
Corporation and any Consolidated Subsidiaries and used or useful to the
Corporation in the business of furnishing or distributing, as a public
utility, gas service, the cost of which is charged and properly chargeable
to plant or plant addition account on the books of the Corporation or such
Consolidated Subsidiary in accordance with sound accounting practices and
generally accepted accounting principles. Utility Fixed Assets need not
consist of a specific or complete accession, addition or improvement or
complete new property, but may include construction work in progress or any
work such as is carried in fixed property accounts in accordance with sound
accounting practices and generally accepted accounting principles, whether
capable of complete description and identification or not.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Debentures.
"INDENTURE SECURITY HOLDER" means a Debentureholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Corporation.
All other terms used in this Indenture that are defined by the TIA
(or defined by the TIA reference to another statute or defined by a SEC rule
under the TIA) have the meanings assigned to them in each such definition.
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SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "Section" shall refer to a Section of this Indenture.
ARTICLE 2 - THE DEBENTURES
SECTION 2.01. FORM AND DATING.
The form of the Debentures to be originally issued as a Global
Security shall be substantially in the form of Exhibit A, which is part of
this Indenture. The form of the Debentures to be issued in exchange for a
Global Security shall be substantially in the form of Exhibit B, which is
part of this Indenture. The terms of such Exhibits A and B are hereby
incorporated herein by reference. The Debentures may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each
Debenture shall be dated the date of its authentication.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Debentures for the Corporation by
manual or facsimile signature. The Corporation's seal shall be reproduced on
the Debentures.
If an Officer whose signature is on a Debenture no longer holds
that Office at the time the Debenture is authenticated, the Debenture shall
nevertheless be valid.
A Debenture shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Debenture has been authenticated under this Indenture.
The Trustee shall authenticate Debentures for original issue up to
the aggregate principal amount of $20,000,000 upon a written order of the
Corporation signed by one Officer. The
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aggregate principal amount of Debentures outstanding at any time may not
exceed that amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Corporation to authenticate Debentures. An authenticating agent may
authenticate Debentures whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal
with the Corporation or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Corporation shall maintain an office or agency where Debentures
may be presented for registration or transfer or for exchange ("REGISTRAR"),
an office or agency where Debentures may be presented for payment ("PAYING
AGENT") and an office or agency where notices and demands to or upon the
Corporation in respect of the Debentures and this Indenture may be served.
The Registrar shall keep a register of the Debentures and of their transfer
and exchange. The Corporation may appoint one or more co-registrars and one
or more additional paying agents. The Corporation or any Subsidiary may act
as Registrar or Paying Agent. The terms "Registrar" and "Paying Agent"
include, respectively, any co-registrar or additional paying agent.
The Corporation shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Corporation fails
to maintain a Registrar, Paying Agent or agent for service of notices and
demands or fails to give the foregoing notice, the Trustee shall act as
such.
The Corporation initially appoints The Fifth Third Bank as
Registrar, Paying Agent and agent for service of notices and demands.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Corporation shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Debentureholders or the Trustee all money held by the Paying
Agent for the payment of Principal or interest on the Debentures, and will
notify the Trustee of any Default by the Corporation in making any such
payment. While any such Default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Corporation at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent shall have no further
liability for the money. If the Corporation (or any Subsidiary) acts as
Paying Agent, it shall segregate and hold as a separate trust fund all money
held by it as Paying Agent.
SECTION 2.05. DEBENTUREHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Debentureholders. If the Trustee is not the Registrar, the Corporation
shall furnish to the Trustee on or before each Interest Payment Date and at
such other times as the Trustee may request in writing a list of the names
and
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addresses of Debentureholders in such form and as of such date as the
Trustee may reasonably require.
SECTION 2.06. TRANSFER AND EXCHANGE.
When Debentures are presented to the Registrar or a co-registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Debentures of other denominations, the Registrar shall
register the transfer or make the exchange, provided that every Debenture
presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder thereof or by his
attorney duly authorized in writing. To permit registrations of transfer and
exchanges, the Trustee shall authenticate Debentures at the Registrar's
written request (which written request may be waived by the Trustee so long
as the Trustee and Registrar are one and the same). No service charge shall
be made for any registration of transfer or exchange of Debentures to the
Debentureholders, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto, other than exchanges pursuant to Section 2.10 or 3.07
hereof.
A Global Security shall be exchangeable pursuant to this Section
for Debentures registered in the names of Persons other than the Depository
or its nominee only as provided in this paragraph. A Global Security shall
be exchangeable pursuant to this Section if (i) such Depository notifies the
Corporation that it is unwilling or unable to continue as Depository for
such Debentures or at any time ceases to be a clearing agency registered as
such under the Exchange Act, (ii) the Corporation executes and delivers to
the Trustee an Officers' Certificate providing that such Global Security
shall be so exchangeable, or (iii) there shall have occurred and be
continuing an Event of Default. Debentures so issued in exchange for a
Global Security shall be of like tenor, in authorized denominations of
$1,000 or integral multiples thereof and in the aggregate having the same
principal amount as the Global Security to be exchanged, and shall be
registered in such names as the Depository shall direct.
Notwithstanding any other provision of this Section, a Global
Security may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository.
SECTION 2.07. REPLACEMENT DEBENTURES.
If the Holder of a Debenture claims that the Debenture has been
lost, destroyed or wrongfully taken, the Corporation shall issue and the
Trustee shall authenticate a replacement Debenture if the Trustee's
requirements are met. If required by the Trustee or the Corporation, an
indemnity bond must be obtained and be sufficient in the judgment of both to
protect the Corporation, the Trustee, any Agent or any authenticating agent
from any loss which any of them may suffer if a Debenture is replaced. The
Corporation and the Trustee may charge for their expenses in replacing a
Debenture.
Every replacement Debenture is an additional obligation of the
Corporation.
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SECTION 2.08. OUTSTANDING DEBENTURES.
The Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Debenture is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Debenture is held by a bona fide purchaser.
If Debentures are considered paid under Section 5.01 hereof, they
cease to be outstanding and interest on them ceases to accrue.
Except for the limitations set forth in Section 2.09 hereof, a
Debenture does not cease to be outstanding because the Corporation or an
Affiliate holds the Debenture.
SECTION 2.09. TREASURY DEBENTURES.
In determining whether the Holders of the required principal amount
of Debentures have concurred in any direction, waiver or consent, Debentures
owned by the Corporation or an Affiliate shall be disregarded, except for
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent. Only Debentures which the Trustee
knows are so owned shall be disregarded.
SECTION 2.10. TEMPORARY DEBENTURES.
Until definitive Debentures are ready for delivery, the Corporation
may prepare and the Trustee shall authenticate temporary Debentures.
Temporary Debentures shall be substantially in the form of definitive
Debentures but may have variations that the Corporation considers
appropriate for temporary Debentures. Without unreasonable delay, the
Corporation shall cause to be issued and the Trustee shall authenticate
definitive Debentures in exchange for temporary Debentures.
SECTION 2.11. CANCELLATION.
The Corporation at any time may deliver Debentures to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Debentures surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Debentures surrendered for
registration of transfer, exchange or payment and shall dispose of canceled
Debentures as the Corporation directs. The Corporation may not issue new
Debentures to replace Debentures that it has paid for or delivered to the
Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Corporation defaults in a payment of interest on the
Debentures, it shall pay the defaulted interest in any lawful manner. It may
pay the defaulted interest, plus any interest
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payable on the defaulted interest, to the Persons who are Debentureholders
on a subsequent Special Record Date. The Corporation shall fix the Special
Record Date and payment date in a manner satisfactory to the Trustee. At
least fifteen (15) days before the Special Record Date, the Corporation
shall mail to Debentureholders a notice that states the Special Record Date,
the payment date and the amount of interest to be paid.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Debenture for registration of
transfer, the Corporation, the Trustee and any Agent of the Corporation or
the Trustee may treat the Person in whose name such Debenture is registered
as the owner of such Debenture for the purpose of receiving payment of
Principal of (and premium, if any) and (subject to Section 2.12 hereof)
interest, if any, on such Debenture and for all other purposes whatsoever,
whether or not such Debenture be overdue, and neither the Corporation, the
Trustee nor any Agent of the Corporation or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Person, or
upon such Person's order, shall be valid, and, to the extent of the sums so
paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Debenture.
Except to the extent provided in Sections 7.06 and 7.07 hereof, no
holder of any beneficial interest in any Global Security held on its behalf
by a Depository shall have any rights under this Indenture with respect to
such Global Security, and such Depository may be treated by the Corporation,
the Trustee, and any Agent of the Corporation or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such
holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depository as Holder of any
Debenture.
ARTICLE 3 - REDEMPTION OF DEBENTURES AT
CORPORATION'S OPTION
SECTION 3.01. REDEMPTION RIGHT AT CORPORATION'S OPTION.
The Corporation has the right to redeem the Debentures at its sole
option, in whole or in part, at any time and from time to time on or after
December 1, 2006, at the Redemption Prices specified in paragraph 5 of the
forms of Debenture attached hereto as Exhibits A and B, subject to the terms
and conditions set forth in this Article 3. The election of the Corporation
to redeem any Debenture shall be evidenced by a Board Resolution.
SECTION 3.02. NOTICES TO TRUSTEE.
If the Corporation wishes to redeem Debentures pursuant to
paragraph 5 of the Debenture, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Debentures to be redeemed. The
Corporation shall give the notice provided for in this Section
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not less than sixty (60) days prior to the Redemption Date or such shorter
time as may be satisfactory to the Trustee.
SECTION 3.03. SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all the Debentures are to be redeemed, the Trustee
shall select the Debentures to be redeemed by lot. The Trustee shall, not
less than forty-five (45) days before the Redemption Date or such shorter
time as may be mutually satisfactory to the Trustee and the Corporation,
inform the Corporation in writing of those specific Debentures selected for
redemption. The Trustee may select for redemption portions of the principal
of Debentures that have denominations larger than $1,000. Debentures and
portions of Debentures that the Trustee selects shall be in amounts of
$1,000 or integral multiples of $1,000. Provisions of this Indenture that
apply to Debentures called for redemption also apply to portions of
Debentures called for redemption.
SECTION 3.04. NOTICE OF REDEMPTION.
At least 30 days before a Redemption Date, the Corporation shall
mail notice of redemption to each Holder whose Debentures are to be
redeemed. A copy of each such notice shall be mailed to the Trustee.
The notice shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Debentures called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(5) that interest on Debentures called for redemption ceases to
accrue on and after the Redemption Date (unless the Corporation shall
default in the payment of the Redemption Price); and
(6) if less than all of the Debentures outstanding are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Debentures to be redeemed.
At the Corporation's written request, the Trustee shall give notice
of redemption in the Corporation's name and at the expense of the
Corporation.
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SECTION 3.05. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed as provided in Section 3.04
hereof, Debentures called for redemption become due and payable on the
Redemption Date at the Redemption Price, subject, however to the provisions
of Section 3.08 hereof.
SECTION 3.06. DEPOSIT OF REDEMPTION PRICE.
On or before the Redemption Date, the Corporation shall deposit
with the Paying Agent cash sufficient to pay the Redemption Price and
accrued interest on all Debentures to be redeemed.
SECTION 3.07. DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Trustee
shall authenticate for the Holder a new Debenture equal in principal amount
to the unredeemed portion of the Debenture surrendered.
SECTION 3.08. CORPORATION'S RIGHT TO WITHDRAW REDEMPTION ELECTION.
Notwithstanding any other provision of this Article 3, the
Corporation shall have the right, at its option, to withdraw, in whole or in
part, its election and notice of redemption pursuant to this Article 3 by
written notice of such withdrawal given by the Corporation to the Trustee
and to each Holder affected thereby at least five (5) days prior to the
Redemption Date. At the Corporation's request, the Trustee shall give such
notice of withdrawal to such Holders in the Corporation's name and at the
expense of the Corporation. Upon the giving of such notice of withdrawal,
the Corporation's redemption election and all notices given pursuant thereto
shall be deemed rescinded to the extent set forth in such notice of
withdrawal and all parties affected thereby shall be restored to their
respective former positions hereunder as if no redemption election had been
made by the Corporation and no such redemption notices had been given.
ARTICLE 4 - REDEMPTION OF DEBENTURES AT DEBENTUREHOLDER'S OPTION
SECTION 4.01. REDEMPTION RIGHT AT DEBENTUREHOLDER'S OPTION.
Representatives of deceased Debentureholders and, as long as the
Global Security remains outstanding, representatives of deceased beneficial
owners of such Global Security, have certain optional redemption rights all
as set forth in paragraph 6 of the forms of Debenture attached hereto as
Exhibits A and B.
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ARTICLE 5 - COVENANTS
SECTION 5.01. PAYMENT OF DEBENTURES.
The Corporation shall pay the Principal of and interest on the
Debentures on the dates and in the manner provided in the Debentures.
Principal and interest shall be considered paid on the date due if the
Trustee or any Paying Agent holds on that date money sufficient to pay all
Principal and interest then due, provided that, if Debentures are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made.
The Corporation shall pay interest on overdue Principal at the rate
borne by the Debentures; it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 5.02. REPORTING.
The Corporation shall file with the Trustee within fifteen (15)
days after it files them with the SEC copies of the annual reports and of
the information, documents, and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe)
which the Corporation is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. The Corporation also shall comply with the
other provisions of TIA Section 314(a).
SECTION 5.03. CORPORATE EXISTENCE.
Subject to Article 6 hereof, the Corporation will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (contractual and statutory) of the
Corporation; provided, however, that the Corporation shall not be required
to preserve any such right if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Corporation taken as a whole and that the loss thereof is
not, and will not be, adverse in any material respect to the Holders.
SECTION 5.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Corporation will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges levied or imposed upon it or any
Subsidiary or upon the income, profits or property of the Corporation or any
Subsidiary and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of
the Corporation or any of its Subsidiaries; provided, however, that the
Corporation shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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SECTION 5.05. LIMITATION ON CERTAIN FUNDED INDEBTEDNESS.
Neither the Corporation nor a Subsidiary will create, issue, incur,
guarantee or assume any Funded Indebtedness which ranks prior to or on a
parity with the Debentures in right of payment unless immediately
thereafter, and after giving effect thereto and to the application of the
proceeds thereof, Consolidated Net Utility Fixed Assets shall be at least
equal to Consolidated Funded Indebtedness.
SECTION 5.06. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENTS ON STOCK.
The Corporation will not declare or pay any dividends or make any
distributions upon any Common Stock (other than dividends and distributions
payable only in shares of Common Stock) and will not directly or indirectly
apply any of the assets of the Corporation to the redemption, retirement,
purchase or other acquisition of any stock of the Corporation of any class,
except purchases or redemptions in compliance with any mandatory sinking
fund or purchase fund or redemption requirement in respect of any preferred
stock of the Corporation, whether now or hereafter authorized or issued,
unless after giving effect to such declaration, payment, distribution or
application of assets the Consolidated Tangible Net Worth of the Corporation
shall be at least equal to $25,800,000 as reflected on the Corporation's
latest available balance sheet, which in no event shall be as of a date more
than three months prior to the date of declaration of a dividend or
application of assets.
SECTION 5.07. LIMITATION ON SECURED INDEBTEDNESS.
Neither the Corporation nor a Subsidiary will issue, assume or
guarantee any Indebtedness secured by a Lien on any property or asset at any
time owned by it, without effectively securing, prior to or concurrently
with the issuance, assumption or guarantee of any such Indebtedness, the
Debentures equally and ratably with (or, at the Corporation's option, in a
prior position to) such Indebtedness. The foregoing described restriction
does not apply to or prevent the creation of:
(1) existing Liens on property or Indebtedness of a
Person which is merged with or into or consolidated with the Corporation or
a Subsidiary provided that the Liens do not apply to any property
theretofore owned by the Corporation;
(2) any Lien existing on the effective date of this
Indenture, and, if the Corporation purchases in fee real property and
acquires or constructs improvements thereon to be used by the Corporation as
office space, a Lien on such real property and improvements to secure
Indebtedness incurred for the purchase of such real property and
improvements, so long as such Lien is limited to such real property and
improvements and such Indebtedness does not exceed 75% of the purchase price
thereof;
(3) Liens on moneys or U.S. Government Obligations
deposited with the Trustee pursuant to the provisions of this Indenture
summarized under Article 9 hereof:
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(4) Liens (which term for purposes of this Subsection
5.07 (4) shall include conditional sale agreements or other title retention
agreements and leases in the nature of title retention agreements) upon
motor vehicles or office equipment acquired by the Corporation or a
Subsidiary after the effective date of this Indenture, under credit terms
customarily extended to purchasers by the manufacturers or other sellers,
provided that no such Lien shall extend to or cover any property of the
Corporation or any Subsidiary, as the case may be, other than the property
then being acquired;
(5) Liens for the sole purpose of extending, renewing
or replacing, in whole or in part, Liens securing Indebtedness of the type
referred to in the foregoing Subsections 5.07 (1) through (4) above,
provided, however, that the principal amount of the Indebtedness so secured
at the time of such extension, renewal or replacement shall not be increased
and that such extension, renewal or replacement shall be limited to all or
part of the property or Indebtedness which secured the Lien so extended,
renewed or replaced (plus improvements on such property);
(6) Liens for taxes or assessments or other governmental
charges or levies not yet due and payable;
(7) Materialmen's, mechanics', workmen's, repairmen's
or other like Liens arising in the ordinary course of business so long as
the obligations giving rise to such Liens are satisfied in a timely manner;
(8) Liens created by or existing from any litigation
or legal proceeding which is currently being contested in good faith by
appropriate proceedings, and as to which execution is effectively stayed; or
(9) Liens to secure Indebtedness having an outstanding
principal balance aggregating not more than $5,000,000 exclusive of
Indebtedness described in the foregoing Subsections 5.07 (1) through (8)
above.
The Corporation further covenants that it will not incur any such
Lien unless the instruments and collateral documents equally and ratably
securing the Debentures are approved by the Trustee, and in the opinion of
independent counsel selected by the Trustee, the transaction creating such
Lien complies with the requirements of this Section.
SECTION 5.08. COMPLIANCE CERTIFICATE.
The Corporation shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Corporation an Officers' Certificate as
to the Corporation's compliance with all conditions and covenants under this
Indenture, and further stating whether or not the signers know of any
Default that occurred during the fiscal year. If the signers know of any
such Default, the Officers' Certificate shall describe the Default and its
status, and the Corporation's compliance shall be determined without regard
to any grace period or notice requirements under this Indenture. The
Officer's Certificate need not comply with Section 11.05 hereof.
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SECTION 5.09. DEFAULT CERTIFICATE.
The Corporation shall deliver to the Trustee, within seven (7) days
of obtaining knowledge of the existence of a Default hereunder, or within
seven (7) days of any Event of Default as described in Section 7.01(4)
hereof, a certificate signed by one of its Officers, setting forth the
nature of the Default and the steps taken, if any, to cure such Default.
ARTICLE 6 - SUCCESSORS
SECTION 6.01. WHEN CORPORATION MAY MERGE, ETC.
The Corporation shall not consolidate or merge into, or transfer or
lease all or substantially all of its assets to, any Person unless:
(1) the Person is a corporation or limited liability company
organized and existing under the Laws of the United States, or any State
thereof or the District of Columbia;
(2) the Person (if the surviving entity in the case of a merger or
the lessee or acquiror of assets) assumes by supplemental indenture all the
obligations of the Corporation under the Debentures and this Indenture;
(3) immediately after the transaction no Default exists; and
(4) the Corporation has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel each stating that the transaction and
supplemental indenture comply with this Article.
The surviving transferee or lessee corporation shall be the
successor Corporation and deemed to and be substituted for the Corporation
under the Indenture, and the predecessor Corporation in the case of a
transfer or lease shall be released from all obligations and covenants under
the Indenture and the Debentures.
ARTICLE 7 - DEFAULTS AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(1) the Corporation defaults in the payment of interest on any
Debenture when the same becomes due and payable and the Default continues
for a period of thirty (30) days;
(2) the Corporation defaults in the payment of the Principal of any
Debenture when the same becomes due and payable at maturity, upon redemption
or otherwise;
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(3) the Corporation fails to comply with any of its other
agreements in the Debentures or this Indenture and the Default continues for
the period and after the notice specified below;
(4) an event of default as defined in any mortgage, indenture or
instrument under which (i) there may be issued, or by which there may be
secured or evidenced, any Indebtedness for money borrowed for which the
Corporation or any Consolidated Subsidiary is responsible or liable as
obligor, guarantor or otherwise or obligations of the Corporation or (ii)
any Consolidated Subsidiary is a lessee under leases required to be
capitalized under generally accepted accounting principles, in an aggregate
principal amount of $100,000 or more, whether such Indebtedness or
obligation now exists or shall hereafter be created, shall happen and shall
result in such Indebtedness or obligation becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not be rescinded or annulled, or such
Indebtedness or obligation shall not have been discharged, within a period
of ten (10) days after written notice has been given to the Corporation by
the Trustee or to the Corporation and the Trustee by the Holders of at least
twenty-five percent (25%) in principal amount of the Debentures then
outstanding, specifying such event of default and requiring the Corporation
to cause such acceleration to be rescinded or annulled or to cause such
Indebtedness or obligation to be discharged and stating that such notice is
a "Notice of Default" hereunder;
(5) the Corporation pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property; or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law, and the order or decree remains unstayed and in
effect for 60 days, that:
(A) is for relief against the Corporation in an involuntary case;
(B) appoints a Custodian of the Corporation for all or
substantially all of its property; or
(C) orders the liquidation of the Corporation.
A Default under Section 7.01(3) above is not an Event of Default
until (i) the Trustee or the Holders of at least twenty-five percent (25%)
in principal amount of the Debentures then outstanding notify the
Corporation of the Default, or (ii) the Corporation provides notice to the
Trustee pursuant to the provisions of Section 5.08 hereof, and the
Corporation does not cure the Default within sixty (60) days after receipt
of such respective notice. The notice must specify the
17
Default, demand that it be remedied and state that the notice is a "Notice
of Default." The Trustee shall, if requested to do so by the Holders of
twenty-five percent (25%) in principal amount of the Debentures, notify the
Corporation of the Default pursuant to this Section.
Subject to the provisions of Sections 8.01 and 8.02 hereof, the
Trustee shall not be charged with knowledge of any Event of Default unless
written notice thereof shall have been given to a Trust Officer of the
Trustee at the Corporate Trust Office by the Corporation, the Paying Agent,
the Holder of a Debenture or an agent of such Holder or, in the case of an
Event of Default under Section 7.01(4) above, by the trustee acting under
any mortgage, indenture or other instrument under which the event of default
shall have occurred or by the holder or the agent of any holder of such
Indebtedness.
SECTION 7.02. ACCELERATION.
If an Event of Default occurs and is continuing, the Trustee, by
notice to the Corporation, or the Holders of at least twenty-five percent
(25%) in principal amount of the Debentures then outstanding, by notice to
the Corporation and the Trustee, may declare the Principal of, and accrued
interest on, all the Debentures to be due and payable. Upon such declaration
the Principal and interest shall be due and payable immediately.
The Holders of a majority in principal amount of the Debentures
then outstanding, by notice to the Trustee, may rescind an acceleration of
all the Debentures and its consequences if (i) all existing Events of
Default have been cured or waived except nonpayment of the principal and
interest that has become due solely because of the acceleration and (ii) if
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 7.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of Principal or interest
on the Debentures or to enforce the performance of any provision of the
Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Debentures or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Debentureholder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in such Event of
Default. All remedies are cumulative to the extent permitted by law.
SECTION 7.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Debentures, by
notice to the Trustee, on behalf of all Debentureholders, may waive a past
Default and its consequences, except a Default in the payment of the
Principal of or interest on any Debenture other than in connection with an
acceleration of all the Debentures, an uncured failure to make any
redemption payment
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or an uncured Default with respect to a provision which cannot be modified
under the terms of this Indenture without the consent of each Holder
affected.
SECTION 7.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Debentures
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial
to the rights of other Debentureholders, or would involve the Trustee in
personal liability; provided, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
However, the Trustee is under no duty or obligation to exercise its
discretion in determining whether such directions may conflict with law or
this Indenture, or are unduly prejudicial to the rights of Debentureholders.
SECTION 7.06. LIMITATION ON SUITS.
A Debentureholder may pursue a remedy with respect to this
Indenture or the Debentures only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least twenty-five percent (25%) in principal
amount of the Debentures then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request by
Debentureholders pursuant to Section 7.06(2) above, within sixty (60) days
after receipt of the request and the offer of indemnity; and
(5) during such sixty (60)-day period the Holders of a majority in
principal amount of the Debentures then outstanding do not give the Trustee
a direction inconsistent with the request.
A Debentureholder may not use this Indenture to prejudice the
rights of another Debentureholder or to obtain a preference or priority over
another Debentureholder.
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Debenture to receive payment of Principal and interest on
the Debenture, on or after the respective due dates expressed in the
Debenture, or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
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SECTION 7.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or Principal
specified in Section 7.01(1) or (2) hereof occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Corporation for the whole amount of unpaid Principal and
accrued interest remaining unpaid.
SECTION 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Debentureholders allowed in any judicial proceedings relative to the
Corporation upon the Debentures, its creditors or its property, and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and
any Custodian in any such judicial proceeding is hereby authorized by each
Debentureholder to make such payments to the Trustee, and in the event that
the Trustee shall consent to the making of such payments directly to the
Debentureholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses and disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07 hereof.
SECTION 7.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.07 hereof;
Second: to Debentureholders for amounts due and unpaid on the
Debentures for Principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Debentures for Principal and interest, respectively; and
Third: to the Corporation.
The Trustee may fix a record date and payment date for any payment
to Debentureholders pursuant to this Article.
SECTION 7.11. UNDERTAKING FOR COSTS.
Subject to the provisions of Section 8.02 hereof, in any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the
20
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 7.07 hereof or a suit by Holders of more than ten
percent (10%) in principal amount of the Debentures.
SECTION 7.12. WAIVER OF STAY OR EXTENSION LAWS.
The Corporation covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of the Indenture; and the
Corporation (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 7.13. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under the Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the
Corporation, the Trustee and the Holders shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.14. RECORD DATE FOR VOTE OF DEBENTUREHOLDERS.
The Corporation may set a record date for purposes of determining
the identity of Debentureholders entitled to vote or consent to any action
by vote or consent authorized or permitted by Sections 7.02, 7.04 and 7.05
hereof. Such record date shall be the later of thirty (30) days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.05 hereof prior to
such solicitation.
ARTICLE 8 - TRUSTEE
SECTION 8.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own gross negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05 hereof.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section 8.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as otherwise agreed with the Corporation. Money held
in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 8.02. RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 8.01 hereof:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Debentures and may otherwise deal with the Corporation
or an Affiliate with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject
to the requirements set forth in Sections 8.10 and 8.11 hereof.
SECTION 8.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Debentures, it shall not be accountable for the
Corporation's use of the proceeds from the Debentures, and it shall not be
responsible for any statement in the Debentures other than its
authentication.
SECTION 8.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to Debentureholders, in the manner and to
the extent provided in TIA Section 313(c), a notice of the Default within
ninety (90) days after it occurs. Except in the case of a Default in payment
of the Principal of or interest on any Debenture, the Trustee may withhold
the notice if and so long as the Trustee's Board of Directors (or its
Executive Committee) or a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of
Debentureholders.
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS.
On or before each June 15 beginning with the June 15 following the
date of this Indenture, the Trustee shall mail to each Debentureholder a
brief report, dated as of such reporting date, with respect to any of the
events listed in TIA Section 313(a) which may have occurred within the
previous twelve (12) months, but if no such event has occurred within such
period no such report need be mailed. The Trustee also shall comply with TIA
Section 313(b)(2).
A copy of each report required in this Section shall be mailed to
such Debentureholders as required by TIA Section 313(c) and shall, at the
time of its mailing to such Debentureholders, be filed with the Corporation,
the SEC and each stock exchange on which the Debentures are listed. The
Corporation shall notify the Trustee when the Debentures are listed on any
stock exchange.
SECTION 8.07. COMPENSATION AND INDEMNITY.
The Corporation shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust.
If an Event of Default should occur, the Trustee shall be entitled to
23
reasonable additional compensation for all additional or extraordinary
services rendered and expenses (including reasonable counsel fees) incurred
in connection with said Event of Default.
The Corporation shall indemnify the Trustee against any loss or
liability incurred by it. The Trustee shall notify the Corporation promptly
of any claim for which it may seek indemnity. The Corporation shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel, and the Corporation shall pay the reasonable fees and
expenses of such counsel. The Corporation need not pay for any settlement
made without its consent.
The Corporation need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Corporation's payment obligations in this Section,
the Trustee shall have a lien prior to the Debentures on all money or
property held or collected by the Trustee.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 7.01(5) or (6) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Corporation. The Holders
of a majority in principal amount of the Debentures may remove the Trustee
by so notifying the Trustee and the Corporation. The Corporation may remove
the Trustee if:
(1) the Trustee fails to comply with Section 8.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or
its property;
(4) the Trustee becomes incapable of acting; or
(5) the Trustee fails to comply with TIA Section 310(b) after an
Event of Default.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Corporation shall promptly appoint a
successor Trustee. Within one year after the successor Trustee assumes
office, the Holders of a majority in principal amount of the Debentures may
appoint a successor Trustee to replace the successor Trustee appointed by
the Corporation.
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If a successor Trustee does not take office within sixty (60) days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Corporation or the Holders of at least ten percent (10%) in principal amount
of the Debentures then outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10 hereof, any
Debentureholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Corporation. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to the Debentureholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 8.07 hereof.
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 8.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a
combined capital and surplus of at least $15,000,000 as set forth in its
most recent published annual report of condition. Neither the Corporation
nor any Affiliate shall serve as Trustee upon the Debentures or pursuant to
this Indenture. The Trustee shall at all time comply with the provisions of
TIA Section 310(b).
SECTION 8.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST CORPORATION.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated.
SECTION 8.12. APPOINTMENT OF CO-TRUSTEE.
It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this
Indenture, and in particular in case of the enforcement of an Event of
Default, or in case the Trustee deems that by reason of any present or
future law of any jurisdiction it may not exercise any of the powers, rights
or remedies herein granted to the Trustee in trust, as herein granted, or
25
take any other action which may be desirable or necessary in connection
therewith, it may be necessary that an additional individual or institution
be appointed as a separate or Co-Trustee.
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction, the Trustee and the Corporation may
appoint an additional individual or institution as a separate or Co-Trustee,
in which event each and every remedy, power, right, claim, demand, cause of
action, immunity, estate, title, interest and lien expressed or intended by
this Indenture, to be exercised by or vested in or conveyed to the Trustee
with respect thereto shall be exercisable by and vest in such separate or
Co-Trustee but only to the extent necessary to enable such separate or
Co-Trustee to exercise such powers, rights and remedies, and every covenant
and obligation necessary to the exercise thereof by such separate or
Co-Trustee shall run to and be enforceable by either of them. If the
Corporation does not join in such appointment within fifteen (15) days after
receipt by it of a request so to do, or in case an Event of Default has
occurred and is continuing, the Trustee alone shall have power to make such
appointment.
Should any deed, conveyance or instrument in writing from the
Corporation be required by the separate or Co-Trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to it such
properties, rights, powers, trusts, duties and obligations, including
particularly the right to be paid its fees for services rendered, any and
all such deeds, conveyances and instruments in writing shall, on request, be
executed, acknowledged and delivered by the Corporation. In case any
separate or Co-Trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of such separate or
Co-Trustee, so far as permitted by law, shall vest in and be exercised by
the Trustee until the appointment of a new Trustee or successor to such
separate or Co-Trustee.
The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of this Indenture shall be conferred or
imposed upon and exercised or performed by the Trustee or by the Trustee and
such separate or Co-Trustee jointly, as shall be provided in the instrument
appointing such separate or Co-Trustee, except to the extent that under any
law of any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such separate or Co-Trustee.
ARTICLE 9 - DISCHARGE OF INDENTURE
SECTION 9.01. TERMINATION OF CORPORATION'S OBLIGATIONS.
The Corporation may at any time terminate all of its obligations
under this Indenture if:
(1) the Corporation provides written notice to the Trustee of the
Corporation's intent to terminate its obligation under this Indenture;
(2) the Debentures mature within one year of the Corporation's
written notice of its intent to terminate or all of the Debentures are to be
called for redemption within one year of the
26
Corporation's written notice of its intent to terminate under arrangements
satisfactory to the Trustee for giving the notice of redemption; and
(3) the Corporation irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations sufficient to pay Principal and
interest on the Debentures at maturity or on redemption, as the case may be.
The Corporation may make the deposit only during the one-year period
referred to in paragraph (2) above.
However, the Corporation's obligations in Sections 2.03, 2.04,
2.05, 2.06, 2.07, 5.01, 8.07, 8.08 and 9.03 hereof shall survive until the
Debentures are no longer outstanding. Thereafter, the Corporation's
obligations in Sections 8.07 and 9.03 hereof shall survive.
After a deposit the Trustee upon request shall acknowledge in
writing the discharge of the Corporation's obligations under this Indenture
except for those surviving obligations specified above.
In order to have money available on a payment date to pay Principal
or interest on the Debentures, the U.S. Government Obligations shall be
payable as to Principal or interest on or before such payment date in such
amounts as will provide the necessary money. The U.S. Government Obligations
shall not be callable at the issuer's option.
SECTION 9.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 9.01 hereof. It shall
apply the deposited money and the money from the U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the
payment of Principal and interest on the Debentures.
SECTION 9.03. REPAYMENT TO CORPORATION.
The Trustee and the Paying Agent shall promptly pay to the
Corporation upon request any excess money or securities held by the Trustee
as a result of the Corporation's making payments to the Trustee and Paying
Agent in excess of that required under the provisions of this Indenture. The
obligation of the Trustee and the Paying Agent to pay such excess money or
securities to the Corporation shall survive the payment and/or cancellation
of all of the Debentures until all such excess funds or securities have been
so paid.
The Trustee and the Paying Agent shall pay to the Corporation
annually as of December 1 of each year any money held by them for the
payment of Principal or interest that remains unclaimed for two years. After
payment to the Corporation, Debentureholders entitled to the money must look
to the Corporation for payment as general creditors unless an applicable
abandoned property law designates another person.
27
ARTICLE 10 - AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Corporation and the Trustee may amend or supplement this
Indenture or the Debentures without notice to or consent of any
Debentureholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 6.01 hereof;
(3) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures; or
(4) to make any change that does not materially adversely affect the
rights of any Debentureholder.
SECTION 10.02. WITH CONSENT OF HOLDERS.
The Corporation and the Trustee may amend or supplement this
Indenture or the Debentures with the written consent of the Holders of at
least a majority in principal amount of the Debentures then outstanding.
Without the consent of each Debentureholder affected, however, an amendment
under this Section may not:
(1) reduce the amount of Debentures whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or change the time for payment of interest on
any Debenture;
(3) reduce the Principal of or change the maturity of any Debenture;
(4) waive a Default in the payment of the Principal of or interest
on any Debenture;
(5) make any Debenture payable in money other than that stated in
the Debenture; or
(6) modify the provisions of Sections 7.04, 7.07 and 10.02 (second
sentence) hereof.
After an amendment or supplement under this Section becomes
effective, the Corporation shall mail to Debentureholders a notice briefly
describing the amendment.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Debentures shall be set forth in a supplemental indenture that complies with
the TIA as then in effect.
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SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Debenture is a continuing consent by the
Holder and every subsequent Holder of a Debenture or portion of a Debenture
that evidences the same debt as the consenting Holder's Debenture, even if
notation of the consent is not made on any Debenture. However, any such
Holder or subsequent Holder may revoke the consent as to his Debenture or
portion of a Debenture if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective.
SECTION 10.05. NOTATION ON OR EXCHANGE OF DEBENTURES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Debenture thereafter authenticated. The
Corporation in exchange for all Debentures may issue and the Trustee shall
authenticate new Debentures that reflect the amendment, supplement or
waiver.
SECTION 10.06. TRUSTEE PROTECTED.
The Trustee need not sign any supplemental indenture that adversely
affects its rights.
ARTICLE 11 - MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of TIA Section 318(c), the duties
imposed by TIA Section 318(c) shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Corporation or the Trustee to
the other is duly given if in writing and when delivered in person or mailed
by first-class mail addressed as follows:
if to the Corporation:
DELTA NATURAL GAS COMPANY, INC.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
if to the Trustee:
FIFTH THIRD BANK
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Administration
29
The Corporation or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Debentureholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Debentureholder or any defect
in it shall not affect its sufficiency with respect to other
Debentureholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Corporation mails a notice or communication to
Debentureholders, it shall mail a copy to the Trustee and each Agent at the
same time.
All notices or communications shall be in writing, except as set
forth below.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice
required by this Indenture, then such method of notification as shall be
made with the approval of the Trustee shall constitute a sufficient mailing
of such notice.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Debentureholders may communicate pursuant to TIA Section 312(b)
with other Debentureholders with respect to their rights under this
Indenture or the Debentures. The Corporation, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Corporation to the Trustee
to take any action under this Indenture, the Corporation shall furnish to
the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel addressed to the Trustee and upon which
the Trustee may rely, stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
30
(1) a statement that the persons making such Officers' Certificate or
Opinion of Counsel have read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
persons, such condition or covenant has been complied with.
SECTION 11.06. RULES BY TRUSTEE AND AGENT.
The Trustee may make reasonable rules for action by, or a meeting
of, Debentureholders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. NO RECOURSE AGAINST OTHERS.
No liability under the Debentures shall inure to any director,
officer, employee or stockholders, as such, of the Corporation and each
Debentureholder, by accepting the Debenture, waives and releases all such
liability.
SECTION 11.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.10. GOVERNING LAW.
This Indenture and the Debentures shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky,
without reference to its principles of conflicts of laws or choice of law.
SECTION 11.11. TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
31
IN WITNESS WHEREOF, Delta Natural Gas Company, Inc. and The Fifth
Third Bank have caused this Indenture to be signed by their respective duly
authorized officers.
Dated: ______________, 2002 DELTA NATURAL GAS COMPANY, INC.
("Corporation")
(SEAL) By: _________________________________
Xxxxx X. Xxxxxxxx, President
and Chief Executive Officer
Attest: _________________________
Xxxx X. Xxxx, Secretary
Dated: ______________, 2002 FIFTH THIRD BANK
("Trustee")
By: ________________________________
Xxxx X. Xxxxxxxx, Trust Officer
32
FORM OF GLOBAL SECURITY
EXHIBIT A
THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS EXCHANGEABLE
FOR DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY
OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY.
Unless this certificate is presented by an authorized
representative of THE DEPOSITORY TRUST COMPANY, a New York corporation
("DTC"), to Delta Natural Gas Corporation, Inc., a Kentucky corporation, 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.
DELTA NATURAL GAS CORPORATION, INC.
_____% DEBENTURE DUE DECEMBER 1, 2022
$20,000,000
No._______________________ CUSIP No. ______________
DELTA NATURAL GAS CORPORATION, INC., a Kentucky corporation, for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of TWENTY MILLION DOLLARS on December 1, 2022, and to pay
interest on said principal sum at the rate of _____% per annum calculated on
the basis of a 360-day year of twelve 30-day months.
1. INTEREST.
DELTA NATURAL GAS CORPORATION, INC. ("CORPORATION"), a Kentucky
corporation, promises to pay interest on the principal amount of this
Debenture at the rate per annum shown above. The Corporation will pay
interest quarterly on March 1, June 1, September 1 and December 1 of each
year (each such date being an "INTEREST PAYMENT DATE"), commencing March 1,
2003. Interest on the Debentures will accrue from the most recent date to
which interest has been paid, or, if no interest has been paid previously,
from the date of original
A-1
issuance of this Debenture; provided that, if there is no existing default
in the payment of interest, and if this Debenture is authenticated between a
"Record Date" (as hereinafter defined) and the next succeeding Interest
Payment Date, interest shall accrue from the next Interest Payment Date. The
term "RECORD DATE" as used herein shall mean the February 15, May 15, August
15 or November 15, as the case may be, immediately preceding each Interest
Payment Date.
2. METHOD OF PAYMENT.
The Corporation will pay interest on the Debentures (except
defaulted interest) to the Paying Agent who will then pay such interest to
the Persons who are registered Holders of Debentures at the close of
business on the Record Date next preceding the Interest Payment Date. The
Corporation shall pay appropriate amounts to the Paying Agent in immediately
available funds at least one (1) business day preceding the Interest Payment
Date. The Paying Agent will pay interest to such Holders on the next
Interest Payment Date even though Debentures are canceled after the Record
Date but on or before the Interest Payment Date. Holders must surrender
Debentures to the Paying Agent to collect Principal payments; except that,
with respect to a Global Security, the Depository need not surrender the
Global Security to collect payments of Principal other than the final
payment of Principal of such Global Security, provided that the Depository
makes appropriate endorsement on such Global Security of such prepayments on
the Table of Prepayments attached hereto. The Paying Agent will pay
Principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However,
except as set forth in the last sentence of this paragraph: (i) the Paying
Agent may pay Principal and interest by check payable in such money; and
(ii) the Paying Agent may mail an interest check to a Holder's registered
address. Any Holder of at least $1,000,000 aggregate principal amount of
Debentures shall have the right to receive payment of Principal of and
interest on the Debentures by wire transfer of funds, provided that such
Debentureholder requests such form of payment, accompanied by appropriate
wire transfer instructions, by written notice to the Trustee and the Paying
Agent given not later than the Record Date immediately preceding such
payment.
3. PAYING AGENT AND REGISTRAR.
Initially, Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxx 00000, will act as Paying Agent and Registrar. The Corporation may
change any Paying Agent, Registrar or co-registrar without notice. The
Corporation or any of its Subsidiaries may act in any such capacity.
4. INDENTURE.
The Corporation issued the Debentures under an Indenture dated as
of November 1, 2002 ("INDENTURE"), between the Corporation and the Trustee.
The terms of the Debentures include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) (the "ACT") as in effect on the date of the
Indenture. The Debentures are subject to all such terms, and
Debentureholders are referred to the Indenture and the Act for a statement
of such terms. Capitalized terms used but not otherwise defined herein shall
have the same meanings such terms are given in the Indenture. The
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Debentures are unsecured general obligations of the Corporation limited to
$20,000,000 in aggregate principal amount.
5. REDEMPTION AT CORPORATION'S OPTION.
The Corporation may, at its option, at any time on or after
_________, 2006, redeem all the Debentures or some of them from time to time
at a Redemption Price equal to (i) during the period from _______, 2006,
through ______, 2007, 102% of the Principal amount thereof plus unpaid
interest to the Redemption Date, (ii) during the period from _______, 2007,
through _____, 2008, 101% of the Principal amount thereof plus unpaid
interest to the Redemption Date and (iii) at any time after _______, 2008,
100% of the Principal amount thereof plus unpaid accrued interest to the
Redemption Date.
Notice of redemption at the Corporation's option will be mailed at
least thirty (30) days before the Redemption Date to each Holder of
Debentures to be redeemed at his registered address as set forth in the
register. Debentures in denominations larger than $1,000 may be redeemed in
part but only in integral multiples of $1,000. On and after the Redemption
Date (if there is no default in the payment of the Redemption Price by the
Corporation), interest ceases to accrue on Debentures or portions thereof
called for redemption. The Corporation shall have the right, at its option,
to withdraw and rescind, in whole or in part, any such optional redemption
by the Corporation and any such notice of redemption given in connection
therewith up to five (5) days prior to the Redemption Date by written notice
of such withdrawal to the Trustee and to the Debentureholders affected
thereby.
6. REDEMPTION BY THE CORPORATION IN THE EVENT OF DEATH OF A BENEFICIAL
-------------------------------------------------------------------
OWNER
-----
Unless the Debentures have been declared due and payable prior to
their maturity by reason of an Event of Default, the Representative (as
hereinafter defined) of a deceased Beneficial Owner (as hereinafter defined)
has the right to request redemption prior to stated maturity of all or part
of his interest in the Debenture, and the Corporation will redeem the same
subject to the limitations that the Corporation will not be obligated to
redeem, during the period from the original issue date through and including
____________, 2003 (the "Initial Period"), and during any twelve-month
period which ends on and includes each __________ thereafter (each such
twelve-month period being hereinafter referred to as a "Subsequent Period"),
(i) on behalf of a deceased Beneficial Owner any interest in the Debentures
which exceeds $25,000 principal amount or (ii) interests in the Debentures
exceeding $400,000 in aggregate principal amount. A request for redemption
may be initiated by the Representative of a deceased Beneficial Owner at any
time and in any principal amount.
The Corporation may, at its option, redeem interests of any
deceased Beneficial Owner in the Debentures in the Initial Period or any
Subsequent Period in excess of the $25,000 limitation. Any such redemption,
to the extent that it exceeds the $25,000 limitation for any deceased
Beneficial Owner, shall not be included in the computation of the $400,000
aggregate limitation for such Initial Period or such Subsequent Period, as
the case may be, or for any succeeding Subsequent Period. The Corporation
may, at its option, redeem interests of deceased Beneficial Owners in the
Debentures, in the Initial Period or any Subsequent Period in an aggregate
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principal amount exceeding $400,000. Any such redemption, to the extent it
exceeds the $400,000 aggregate limitation, shall not reduce the $400,000
aggregate limitation for any Subsequent Period. On any determination by the
Corporation to redeem Debenture in excess of the $25,000 limitation or the
$400,000 aggregate limitation, Debentures so redeemed shall be redeemed in
the order of the receipt of Redemption Requests (as hereinafter defined) by
the Trustee.
A request for redemption of an interest in the Debentures may be
initiated by the personal representative or other person authorized to
represent the estate of the deceased Beneficial Owner or from a surviving
joint tenant(s) or tenant(s) by the entirety or the trustee of a trust
(each, a "Representative"). The Representative shall deliver a request to
the Participant (hereinafter defined) through whom the deceased Beneficial
Owner owned such interest, in form satisfactory to the Participant, together
with evidence of the death of the Beneficial Owner, evidence of the
authority of the Representative satisfactory to the Participant, such
waivers, notices or certificates as may be required under applicable state
or federal law and such other evidence of the right to such redemption as
the Participant shall require. The request shall specify the principal
amount of the interest in the Debentures to be redeemed. The Participant
shall thereupon deliver to the Depositary a request for redemption
substantially in the form attached as EXHIBIT A hereto (a "Redemption
Request"). The Depositary will, on receipt thereof, forward the same to the
Trustee. The Trustee shall maintain records with respect to Redemption
Requests received by it including date of receipt, the name of the
Participant filing the Redemption Request and the status of each such
Redemption Request with respect to the $25,000 limitation and the $400,000
aggregate limitation. The Trustee will immediately file each Redemption
Request it receives, together with the information regarding the eligibility
thereof with respect to the $25,000 limitation and the $400,000 aggregate
limitation, with the Corporation. The Depositary, the Corporation and the
Trustee may conclusively assume, without independent investigation, that the
statements contained in each Redemption Request are true and correct and
shall have no responsibility for reviewing any documents submitted to the
Participant by the Representative or for determining whether the applicable
decedent is in fact the Beneficial Owner of the interest in the Debentures
to be redeemed or was in fact deceased and whether the Representative is
duly authorized to request the redemption on behalf of the applicable
Beneficial Owner.
Subject to the $25,000 limitation and the $400,000 aggregate
limitation, the Corporation will, after the death of any Beneficial Owner,
redeem the interest of such Beneficial Owner in the Debenture within sixty
(60) days following receipt by the Corporation of a Redemption Request from
the Trustee. If Redemption Requests exceed the aggregate principal amount of
interests in Debentures required to be redeemed during the Initial Period or
during any Subsequent Period, then such excess Redemption Requests will be
applied in the order received by the Trustee to successive Subsequent
Periods, regardless of the number of Subsequent Periods required to redeem
such interests. The Corporation may, at any time notify the Trustee that it
will redeem, on a date not less than thirty (30) nor more than sixty (60)
days thereafter, all or any such lesser amount of Debentures for which
Redemption Requests have been received but which are not then eligible for
redemption by reason of the $25,000 limitation or the $400,000 aggregate
limitation. Any Debentures so redeemed shall be redeemed in the order of
receipt of Redemption Requests by the Trustee.
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The price to be paid by the Corporation for the Debentures to be
redeemed pursuant to a Redemption Request is 100% of the principal amount
thereof plus accrued but unpaid interest to the date of payment. Subject to
arrangements with the Depositary, payment for interests in the Debentures
which are to be redeemed shall be made to the Depositary upon presentation
of Debentures to the Trustee for redemption in the aggregate principal
amount specified in the Redemption Requests submitted to the Trustee by the
Depositary which are to be fulfilled in connection with such payment. The
principal amount of any Debentures acquired or redeemed by the Corporation
other than by redemption at the option of any Representative of a deceased
Beneficial Owner pursuant to this section shall not be included in the
computation of either the $25,000 limitation or the $400,000 aggregate
limitation for the Initial Period or for any Subsequent Period.
For purposes of this section, a "Beneficial Owner" means the Person
who has the right to sell, transfer or otherwise dispose of an interest in a
Debenture and the right to receive the proceeds therefrom, as well as the
interest and Principal payable to the holder thereof. In general, a
determination of beneficial ownership in the Debentures will be subject to
the rules, regulations and procedures governing the Depositary and
institutions that have accounts with the Depositary or a nominee thereof
("Participants").
For purposes of this section, an interest in a Debenture held in
tenancy by the entirety, joint tenancy or by tenants in common will be
deemed to be held by a single Beneficial Owner and the death of a tenant by
the entirety, joint tenant or tenant in common will be deemed the death of a
Beneficial Owner. The death of a person who, during his lifetime, was
entitled to substantially all of the rights of a Beneficial Owner of an
interest in the Debentures will be deemed the death of the Beneficial Owner,
regardless of the recordation of such interest on the records of the
Participant, if such rights can be established to the satisfaction of the
Participant. Such interests shall be deemed to exist in typical cases of
nominee ownership, ownership under the Uniform Gifts to Minors Act or the
Uniform Transfers to Minors Act, community property or other similar joint
ownership arrangements, including individual retirement accounts or Xxxxx
[H.R. 10] plans maintained solely by or for the decedent or by or for the
decedent and any spouse, and trust and certain other arrangements where one
Person has substantially all of the rights of a Beneficial Owner during such
person's lifetime.
In the case of a redemption request which is presented on behalf of
a deceased Beneficial Owner and which has not been fulfilled at the time we
give notice of our election to redeem the Debentures, the Debentures which
are the subject of such pending redemption request shall be redeemed prior
to any other Debentures.
Any Redemption Request may be withdrawn by the Person(s) presenting
the same upon delivery of a written request for such withdrawal given by the
Participant on behalf of such Person to the Depositary and by the Depositary
to the Trustee not less than thirty (30) days prior to payment thereof by
the Corporation.
The Corporation may, at its option, purchase any Debentures for
which Redemption Requests have been received in lieu of redeeming such
Debentures. Any Debentures so
A-5
purchased by the Corporation shall either be reoffered for sale and sold
within 180 days after the date of purchase or presented to the Trustee for
redemption and cancellation.
During such time or times as the Debentures are not represented by
a Global Security and are issued in definitive form, all references in this
Section to Participants and the Depositary, including the Depositary's
governing rules, regulations and procedures, shall be deemed deleted, all
determinations which under this section the Participants are required to
make shall be made by the Corporation (including, without limitation,
determining whether the applicable decedent is in fact the Beneficial Owner
of the interest in the Debentures to be redeemed or is in fact deceased and
whether the Representative is duly authorized to request redemption on
behalf of the applicable Beneficial Owner), all redemption requests, to be
effective, shall be delivered by the Representative to the Trustee, with a
copy to the Corporation, and shall be in the form of a Redemption Request
(with appropriate changes to reflect the fact that such Redemption Request
is being executed by a Representative) and, in addition to all documents
that are otherwise required to accompany a Redemption Request, shall be
accompanied by the Debenture that is the subject of such request.
7. DENOMINATIONS, TRANSFER AND EXCHANGE.
The Debentures are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. The transfer of
Debentures shall be registered and Debentures may be exchanged as provided
in the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need
not exchange or register the transfer of any Debenture or portion of a
Debenture selected for redemption. Also, it need not exchange or register
the transfer of any Debentures during that period of time subsequent to any
Record Date and prior to the next succeeding Interest Payment Date.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Debenture may be treated as its owner
for all purposes.
9. AMENDMENTS, SUPPLEMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Debentures may
be amended or supplemented, and any existing Default may be waived, with the
consent of Holders of a majority in principal amount of the Debentures then
outstanding. Without the consent of any Debentureholder, the Indenture or
the Debentures may be amended or supplemented, for among other reasons, to
cure any ambiguity, defect or inconsistency, to provide for assumption of
Corporation obligations to Debentureholders or to make any change that does
not materially adversely affect the rights of any Debentureholder.
10. DEFAULTS AND REMEDIES.
An Event of Default is: default for thirty (30) days in payment of
interest on the Debentures; default in payment of Principal of the
Debentures; failure by the Corporation for
A-6
sixty (60) days after notice to it to comply with any of its other
agreements in the Indenture or the Debentures; default in the payment of
Indebtedness having an outstanding principal balance of $100,000 or more
under certain circumstances; and certain events of bankruptcy or insolvency.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least twenty-five percent (25%) in principal amount of the Debentures
may declare all the Debentures to be due and payable immediately.
Debentureholders may not enforce the Indenture or the Debentures except as
provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Debentures. Subject to certain
limitations, Holders of a majority in principal amount of the Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Debentureholders notice of any continuing Default (except a
default in payment of Principal or interest) if it determines that
withholding notice is in their interests. The Corporation must furnish an
annual Officers' Certificate to the Trustee.
The Trustee shall not be charged with knowledge of any Event of
Default as defined in the Indenture, unless written notice thereof shall
have been given to a Trust Officer of the Trustee at the Corporate Trust
Office by the Corporation, the Paying Agent, the Holder of a Debenture or an
agent of such Holder.
11. TRUSTEE DEALINGS WITH CORPORATION.
Fifth Third Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Corporation or its Affiliates, and may
otherwise deal with the Corporation or its Affiliates, as if it were not
Trustee, subject to any limitations imposed by the Act.
12. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Corporation shall not have any liability for any obligations of the
Corporation under the Debentures or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each
Debentureholder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Debentures.
13. AUTHENTICATION.
This Debenture shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Debentureholder or an assignee, such as TEN COM ( = tenants in common), TEN
ENT ( = tenants by the entirety), JT TEN ( = joint tenants with right of
survivorship and not as tenants in common), CUST ( = Custodian), and U/G/M/A
( = Uniform Gifts to Minors Act).
A-7
Dated:
Authenticated:
FIFTH THIRD BANK, DELTA NATURAL GAS
AS TRUSTEE CORPORATION, INC.
By:_______________________________ By:_________________________________
Its: Authorized Signer Xxxxx X. Xxxxxxxx, President and
Chief Executive Officer
By:_________________________________
Xxxx X. Xxxx, Secretary
(SEAL)
_________________________
The Corporation will furnish to any Debentureholder upon written request and
without charge a copy of the Indenture, which has in it the text of this
Debenture in larger type. Requests may be made to: Treasurer, Delta Natural
Gas Corporation, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
A-8
____________________
TABLE OF PREPAYMENTS
Upon all partial payments of principal of the within Debenture,
this Debenture shall be surrendered to the Trustee for issuance of a new
Debenture unless the registered Holder hereof shall make appropriate
endorsements on the table below indicating the amount of principal so
prepaid, prior to any transfer to this Debenture. Any purchaser or
transferee of this Debenture shall verify with the Trustee the principal
balance outstanding prior to the purchase or transfer hereof.
PRINCIPAL REMAINING UNPAID
DATE AMOUNT PAID PRINCIPAL BALANCE SIGNATURE
---- ----------- ----------------- ---------
A-9
ASSIGNMENT FORM
I/We assign and transfer this Debenture to
[________________________]
(Insert assignee's social
security or tax I.D. number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint __________________________________ agent to transfer
this Debenture on the books of the Corporation. The agent may substitute
another to act for him.
DATE: ___________________ SIGNATURE: ___________________________________
(Sign exactly as your
name appears on this
Debenture)
Signature Guarantee
_______________________
A-10
EXHIBIT A
FORM OF REDEMPTION REQUEST
DELTA NATURAL GAS COMPANY, INC.
____% DEBENTURES DUE DECEMBER 1, 2022
(THE "DEBENTURES")
CUSIP NO. __________
The undersigned, ____________________ (the "Participant"), does
hereby certify, pursuant to the provisions of that certain Indenture dated
as of December 1, 2002 (the "Indenture") made by Delta Natural Gas Company,
Inc. (the "Company") and Fifth Third Bank, as Trustee (the "Trustee"), to
The Depositary Trust Company (the "Depositary"), the Company, and the
Trustee that:
1. [Name of deceased Beneficial Owner] is deceased.
2. [Name of deceased Beneficial Owner] had a $__________ interest
in the above referenced Debentures.
3. [Name of Representative] is [Beneficial Owner's personal
representative/other person authorized to represent the estate of the
Beneficial Owner/surviving joint tenant/surviving tenant by the
entirety/trustee of a trust] of [Name of deceased Beneficial Owner] and has
delivered to the undersigned a request for redemption in form satisfactory
to the undersigned, requesting that $__________ principal amount of said
Debentures be redeemed pursuant to said Indenture. The documents
accompanying such request, all of which are in proper form, are in all
respects satisfactory to the undersigned and the [Name of Representative] is
entitled to have the Debentures to which this Request relates redeemed.
4. The Participant holds the interest in the Debentures with
respect to which this Redemption Request is being made on behalf of [Name of
deceased Beneficial Owner].
5. The Participant hereby certifies that it will indemnify and hold
harmless the Depositary, the Trustee and the Corporation (including their
respective officers, directors, agents, attorneys and employees), against
all damages, loss, cost, expense (including reasonable attorneys' and
accountants' fees), obligations, claims or liability (collectively, the
"Damages") incurred by the indemnified party or parties as a result of or in
connection with the redemption of Debentures to which this Request relates.
The Participant will, at the request of the Corporation, forward to the
Corporation, a copy of the documents submitted by [Name of Representative]
in support of the request for redemption.
A-11
IN WITNESS WHEREOF, the undersigned has executed this Redemption
Request as of ____________, _____.
[PARTICIPANT NAME]
By:_________________________________
Name:_______________________________
Title:______________________________
A-12
FORM OF DEBENTURE
EXHIBIT B
(Face of Debenture)
DELTA NATURAL GAS COMPANY, INC.
_____% DEBENTURE DUE DECEMBER 1, 2022
No. ______________________ $_________________________
DELTA NATURAL GAS COMPANY, INC., a Kentucky corporation, for value
received, hereby promises to pay to ________________________, or registered
assigns, the principal sum of_______________________ DOLLARS on _________,
2022, and to pay interest on said principal sum at the rate of _____% per
annum calculated on the basis of a 360-day year of twelve 30-day months.
INTEREST PAYMENT DATES: March 1, June 1, September 1 and December 1
RECORD DATES: February 15, May 15, August 15 and November 15
Dated:
Authenticated:
FIFTH THIRD BANK, DELTA NATURAL GAS
AS TRUSTEE COMPANY, INC.
By:_____________________________ By:_______________________________
Its: Authorized Signer Xxxxx X. Xxxxxxxx, President
By:_______________________________
Xxxx X. Xxxx, Secretary
(SEAL)
B-1
(Back of Debenture)
DELTA NATURAL GAS COMPANY, INC.
_______% DEBENTURE DUE DECEMBER 1, 2022
1. INTEREST.
DELTA NATURAL GAS CORPORATION, INC. ("CORPORATION"), a Kentucky
corporation, promises to pay interest on the principal amount of this
Debenture at the rate per annum shown above. The Corporation will pay
interest quarterly on March 1, June 1, September 1 and December 1 of each
year (each such date being an "INTEREST PAYMENT DATE"), commencing March 1,
2003. Interest on the Debentures will accrue from the most recent date to
which interest has been paid, or, if no interest has been paid previously,
from the date of original issuance of this Debenture; provided that, if
there is no existing default in the payment of interest, and if this
Debenture is authenticated between a "Record Date" (as hereinafter defined)
and the next succeeding Interest Payment Date, interest shall accrue from
the next Interest Payment Date. The term "RECORD DATE" as used herein shall
mean the February 15, May 15, August 15 or November 15, as the case may be,
immediately preceding each Interest Payment Date.
2. METHOD OF PAYMENT.
The Corporation will pay interest on the Debentures (except
defaulted interest) to the Paying Agent who will then pay such interest to
the Persons who are registered Holders of Debentures at the close of
business on the Record Date next preceding the Interest Payment Date. The
Corporation shall pay appropriate amounts to the Paying Agent in immediately
available funds at least one (1) business day preceding the Interest Payment
Date. The Paying Agent will pay interest to such Holders on the next
Interest Payment Date even though Debentures are canceled after the Record
Date but on or before the Interest Payment Date. Holders must surrender
Debentures to the Paying Agent to collect Principal payments; except that,
with respect to a Global Security, the Depository need not surrender the
Global Security to collect payments of Principal other than the final
payment of Principal of such Global Security, provided that the Depository
makes appropriate endorsement on such Global Security of such prepayments on
the Table of Prepayments attached hereto. The Paying Agent will pay
Principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However,
except as set forth in the last sentence of this paragraph: (i) the Paying
Agent may pay Principal and interest by check payable in such money; and
(ii) the Paying Agent may mail an interest check to a Holder's registered
address. Any Holder of at least $1,000,000
B-2
aggregate principal amount of Debentures shall have the right to receive
payment of Principal of and interest on the Debentures by wire transfer of
funds, provided that such Debentureholder requests such form of payment,
accompanied by appropriate wire transfer instructions, by written notice to
the Trustee and the Paying Agent given not later than the Record Date
immediately preceding such payment.
3. PAYING AGENT AND REGISTRAR.
Initially, Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxx 00000, will act as Paying Agent and Registrar. The Corporation may
change any Paying Agent, Registrar or co-registrar without notice. The
Corporation or any of its Subsidiaries may act in any such capacity.
4. INDENTURE.
The Corporation issued the Debentures under an Indenture dated as
of November 1, 2002 ("INDENTURE"), between the Corporation and the Trustee.
The terms of the Debentures include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) (the "ACT") as in effect on the date of the
Indenture. The Debentures are subject to all such terms, and
Debentureholders are referred to the Indenture and the Act for a statement
of such terms. Capitalized terms used but not otherwise defined herein shall
have the same meanings such terms are given in the Indenture. The Debentures
are unsecured general obligations of the Corporation limited to $20,000,000
in aggregate principal amount.
5. REDEMPTION AT CORPORATION'S OPTION.
The Corporation may, at its option, at any time on or after
_________, 2006, redeem all the Debentures or some of them from time to time
at a Redemption Price equal to (i) during the period from _______, 2006,
through ______, 2007, 102% of the Principal amount thereof plus unpaid
interest to the Redemption Date, (ii) during the period from _______, 2007,
through _____, 2008, 101% of the Principal amount thereof plus unpaid
interest to the Redemption Date and (iii) at any time after _______, 2008,
100% of the Principal amount thereof plus unpaid accrued interest to the
Redemption Date.
Notice of redemption at the Corporation's option will be mailed at
least thirty (30) days before the Redemption Date to each Holder of
Debentures to be redeemed at his registered address as set forth in the
register. Debentures in denominations larger than $1,000 may be redeemed in
part but only in integral multiples of $1,000. On and after the Redemption
Date (if there is no default in the payment of the Redemption Price by the
Corporation), interest ceases to accrue on Debentures or portions thereof
called for redemption. The Corporation shall have the right, at its option,
to withdraw and rescind, in whole or in part, any such optional redemption
by the Corporation and any such notice of redemption given in connection
therewith up to five (5) days prior to the Redemption Date by written notice
of such withdrawal to the Trustee and to the Debentureholders affected
thereby.
B-3
6. REDEMPTION BY THE CORPORATION IN THE EVENT OF DEATH OF A BENEFICIAL
-------------------------------------------------------------------
OWNER
-----
Unless the Debentures have been declared due and payable prior to
their maturity by reason of an Event of Default, the Representative (as
hereinafter defined) of a deceased Beneficial Owner (as hereinafter defined)
has the right to request redemption prior to stated maturity of all or part
of his interest in the Debenture, and the Corporation will redeem the same
subject to the limitations that the Corporation will not be obligated to
redeem, during the period from the original issue date through and including
____________, 2003 (the "Initial Period"), and during any twelve-month
period which ends on and includes each __________ thereafter (each such
twelve-month period being hereinafter referred to as a "Subsequent Period"),
(i) on behalf of a deceased Beneficial Owner any interest in the Debentures
which exceeds $25,000 principal amount or (ii) interests in the Debentures
exceeding $400,000 in aggregate principal amount. A request for redemption
may be initiated by the Representative of a deceased Beneficial Owner at any
time and in any principal amount.
The Corporation may, at its option, redeem interests of any
deceased Beneficial Owner in the Debentures in the Initial Period or any
Subsequent Period in excess of the $25,000 limitation. Any such redemption,
to the extent that it exceeds the $25,000 limitation for any deceased
Beneficial Owner, shall not be included in the computation of the $400,000
aggregate limitation for such Initial Period or such Subsequent Period, as
the case may be, or for any succeeding Subsequent Period. The Corporation
may, at its option, redeem interests of deceased Beneficial Owners in the
Debentures, in the Initial Period or any Subsequent Period in an aggregate
principal amount exceeding $400,000. Any such redemption, to the extent it
exceeds the $400,000 aggregate limitation, shall not reduce the $400,000
aggregate limitation for any Subsequent Period. On any determination by the
Corporation to redeem Debenture in excess of the $25,000 limitation or the
$400,000 aggregate limitation, Debentures so redeemed shall be redeemed in
the order of the receipt of Redemption Requests (as hereinafter defined) by
the Trustee.
A request for redemption of an interest in the Debentures may be
initiated by the personal representative or other person authorized to
represent the estate of the deceased Beneficial Owner or from a surviving
joint tenant(s) or tenant(s) by the entirety or the trustee of a trust
(each, a "Representative"). The Representative shall deliver a request to
the Participant (hereinafter defined) through whom the deceased Beneficial
Owner owned such interest, in form satisfactory to the Participant, together
with evidence of the death of the Beneficial Owner, evidence of the
authority of the Representative satisfactory to the Participant, such
waivers, notices or certificates as may be required under applicable state
or federal law and such other evidence of the right to such redemption as
the Participant shall require. The request shall specify the principal
amount
B-4
of the interest in the Debentures to be redeemed. The Participant shall
thereupon deliver to the Depositary a request for redemption substantially
in the form attached as EXHIBIT A hereto (a "Redemption Request"). The
Depositary will, on receipt thereof, forward the same to the Trustee. The
Trustee shall maintain records with respect to Redemption Requests received
by it including date of receipt, the name of the Participant filing the
Redemption Request and the status of each such Redemption Request with
respect to the $25,000 limitation and the $400,000 aggregate limitation. The
Trustee will immediately file each Redemption Request it receives, together
with the information regarding the eligibility thereof with respect to the
$25,000 limitation and the $400,000 aggregate limitation, with the
Corporation. The Depositary, the Corporation and the Trustee may
conclusively assume, without independent investigation, that the statements
contained in each Redemption Request are true and correct and shall have no
responsibility for reviewing any documents submitted to the Participant by
the Representative or for determining whether the applicable decedent is in
fact the Beneficial Owner of the interest in the Debentures to be redeemed
or was in fact deceased and whether the Representative is duly authorized to
request the redemption on behalf of the applicable Beneficial Owner.
Subject to the $25,000 limitation and the $400,000 aggregate
limitation, the Corporation will, after the death of any Beneficial Owner,
redeem the interest of such Beneficial Owner in the Debenture within sixty
(60) days following receipt by the Corporation of a Redemption Request from
the Trustee. If Redemption Requests exceed the aggregate principal amount of
interests in Debentures required to be redeemed during the Initial Period or
during any Subsequent Period, then such excess Redemption Requests will be
applied in the order received by the Trustee to successive Subsequent
Periods, regardless of the number of Subsequent Periods required to redeem
such interests. The Corporation may, at any time notify the Trustee that it
will redeem, on a date not less than thirty (30) nor more than sixty (60)
days thereafter, all or any such lesser amount of Debentures for which
Redemption Requests have been received but which are not then eligible for
redemption by reason of the $25,000 limitation or the $400,000 aggregate
limitation. Any Debentures so redeemed shall be redeemed in the order of
receipt of Redemption Requests by the Trustee.
The price to be paid by the Corporation for the Debentures to be
redeemed pursuant to a Redemption Request is 100% of the principal amount
thereof plus accrued but unpaid interest to the date of payment. Subject to
arrangements with the Depositary, payment for interests in the Debentures
which are to be redeemed shall be made to the Depositary upon presentation
of Debentures to the Trustee for redemption in the aggregate principal
amount specified in the Redemption Requests submitted to the Trustee by the
Depositary which are to be fulfilled in connection with such payment. The
principal amount of any Debentures acquired or redeemed by the Corporation
other than by redemption at the option of any Representative of a deceased
Beneficial Owner pursuant to this section shall not be included in the
computation of either the $25,000 limitation or the $400,000 aggregate
limitation for the Initial Period or for any Subsequent Period.
B-5
For purposes of this section, a "Beneficial Owner" means the Person
who has the right to sell, transfer or otherwise dispose of an interest in a
Debenture and the right to receive the proceeds therefrom, as well as the
interest and Principal payable to the holder thereof. In general, a
determination of beneficial ownership in the Debentures will be subject to
the rules, regulations and procedures governing the Depositary and
institutions that have accounts with the Depositary or a nominee thereof
("Participants").
For purposes of this section, an interest in a Debenture held in
tenancy by the entirety, joint tenancy or by tenants in common will be
deemed to be held by a single Beneficial Owner and the death of a tenant by
the entirety, joint tenant or tenant in common will be deemed the death of a
Beneficial Owner. The death of a person who, during his lifetime, was
entitled to substantially all of the rights of a Beneficial Owner of an
interest in the Debentures will be deemed the death of the Beneficial Owner,
regardless of the recordation of such interest on the records of the
Participant, if such rights can be established to the satisfaction of the
Participant. Such interests shall be deemed to exist in typical cases of
nominee ownership, ownership under the Uniform Gifts to Minors Act or the
Uniform Transfers to Minors Act, community property or other similar joint
ownership arrangements, including individual retirement accounts or Xxxxx
[H.R. 10] plans maintained solely by or for the decedent or by or for the
decedent and any spouse, and trust and certain other arrangements where one
Person has substantially all of the rights of a Beneficial Owner during such
person's lifetime.
In the case of a redemption request which is presented on behalf of
a deceased Beneficial Owner and which has not been fulfilled at the time we
give notice of our election to redeem the Debentures, the Debentures which
are the subject of such pending redemption request shall be redeemed prior
to any other Debentures.
Any Redemption Request may be withdrawn by the Person(s) presenting
the same upon delivery of a written request for such withdrawal given by the
Participant on behalf of such Person to the Depositary and by the Depositary
to the Trustee not less than thirty (30) days prior to payment thereof by
the Corporation.
The Corporation may, at its option, purchase any Debentures for
which Redemption Requests have been received in lieu of redeeming such
Debentures. Any Debentures so purchased by the Corporation shall either be
reoffered for sale and sold within 180 days after the date of purchase or
presented to the Trustee for redemption and cancellation.
During such time or times as the Debentures are not represented by
a Global Security and are issued in definitive form, all references in this
Section to Participants and the Depositary, including the Depositary's
governing rules, regulations and procedures, shall be deemed deleted, all
determinations which under this section the Participants are required to
make shall be made by the Corporation (including, without limitation,
determining whether the applicable decedent is in fact the Beneficial Owner
of the interest in the Debentures to be redeemed or is in fact deceased and
whether the Representative is duly authorized to request redemption on
behalf of
B-6
the applicable Beneficial Owner), all redemption requests, to be effective,
shall be delivered by the Representative to the Trustee, with a copy to the
Corporation, and shall be in the form of a Redemption Request (with
appropriate changes to reflect the fact that such Redemption Request is
being executed by a Representative) and, in addition to all documents that
are otherwise required to accompany a Redemption Request, shall be
accompanied by the Debenture that is the subject of such request.
7. DENOMINATIONS, TRANSFER AND EXCHANGE.
The Debentures are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. The transfer of
Debentures shall be registered and Debentures may be exchanged as provided
in the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need
not exchange or register the transfer of any Debenture or portion of a
Debenture selected for redemption. Also, it need not exchange or register
the transfer of any Debentures during that period of time subsequent to any
Record Date and prior to the next succeeding Interest Payment Date.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Debenture may be treated as its owner
for all purposes.
9. AMENDMENTS, SUPPLEMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Debentures may
be amended or supplemented, and any existing Default may be waived, with the
consent of Holders of a majority in principal amount of the Debentures then
outstanding. Without the consent of any Debentureholder, the Indenture or
the Debentures may be amended or supplemented, for among other reasons, to
cure any ambiguity, defect or inconsistency, to provide for assumption of
Corporation obligations to Debentureholders or to make any change that does
not materially adversely affect the rights of any Debentureholder.
10. DEFAULTS AND REMEDIES.
An Event of Default is: default for thirty (30) days in payment of
interest on the Debentures; default in payment of Principal of the
Debentures; failure by the Corporation for sixty (60) days after notice to
it to comply with any of its other agreements in the Indenture or the
Debentures; default in the payment of Indebtedness having an outstanding
principal balance of $100,000 or more under certain circumstances; and
certain events of bankruptcy or insolvency. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least twenty-five
percent (25%) in principal amount of the Debentures may declare all the
Debentures to be due and payable immediately. Debentureholders may not
enforce the Indenture or the Debentures except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before
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it enforces the Indenture or the Debentures. Subject to certain limitations,
Holders of a majority in principal amount of the Debentures may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Debentureholders notice of any continuing Default (except a default in
payment of Principal or interest) if it determines that withholding notice
is in their interests. The Corporation must furnish an annual Officers'
Certificate to the Trustee.
The Trustee shall not be charged with knowledge of any Event of
Default as defined in the Indenture, unless written notice thereof shall
have been given to a Trust Officer of the Trustee at the Corporate Trust
Office by the Corporation, the Paying Agent, the Holder of a Debenture or an
agent of such Holder.
11. TRUSTEE DEALINGS WITH CORPORATION.
Fifth Third Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Corporation or its Affiliates, and may
otherwise deal with the Corporation or its Affiliates, as if it were not
Trustee, subject to any limitations imposed by the Act.
12. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Corporation shall not have any liability for any obligations of the
Corporation under the Debentures or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each
Debentureholder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Debentures.
13. AUTHENTICATION.
This Debenture shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Debentureholder or an assignee, such as TEN COM ( = tenants in common), TEN
ENT ( = tenants by the entirety), JT TEN ( = joint tenants with right of
survivorship and not as tenants in common), CUST ( = Custodian), and U/G/M/A
( = Uniform Gifts to Minors Act).
The Corporation will furnish to any Debentureholder upon written request and
without charge a copy of the Indenture, which has in it the text of this
Debenture in larger type. Requests may be made to: Treasurer, Delta Natural
Gas Company, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
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ASSIGNMENT FORM
I/We assign and transfer this Debenture to
[________________________]
(Insert assignee's social
security or tax I.D. number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint _________________________ agent to transfer this
Debenture on the books of the Corporation. The agent may substitute another
to act for him.
Date: ___________________ Signature: ____________________________________
(Sign exactly as your
name appears on the
other side of this
Debenture)
Signature Guarantee
___________________________
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EXHIBIT A
FORM OF REDEMPTION REQUEST
DELTA NATURAL GAS COMPANY, INC.
____% DEBENTURES DUE DECEMBER 1, 2022
(THE "DEBENTURES")
CUSIP NO. __________
The undersigned, ____________________ (the "Participant"), does
hereby certify, pursuant to the provisions of that certain Indenture dated
as of December 1, 2002 (the "Indenture") made by Delta Natural Gas Company,
Inc. (the "Company") and Fifth Third Bank, as Trustee (the "Trustee"), to
The Depositary Trust Company (the "Depositary"), the Company, and the
Trustee that:
1. [Name of deceased Beneficial Owner] is deceased.
2. [Name of deceased Beneficial Owner] had a $__________ interest in
the above referenced Debentures.
3. [Name of Representative] is [Beneficial Owner's personal
representative/other person authorized to represent the estate of the
Beneficial Owner/surviving joint tenant/surviving tenant by the
entirety/trustee of a trust] of [Name of deceased Beneficial Owner] and has
delivered to the undersigned a request for redemption in form satisfactory
to the undersigned, requesting that $__________ principal amount of said
Debentures be redeemed pursuant to said Indenture. The documents
accompanying such request, all of which are in proper form, are in all
respects satisfactory to the undersigned and the [Name of Representative] is
entitled to have the Debentures to which this Request relates redeemed.
4. The Participant holds the interest in the Debentures with
respect to which this Redemption Request is being made on behalf of [Name of
deceased Beneficial Owner].
5. The Participant hereby certifies that it will indemnify and hold
harmless the Depositary, the Trustee and the Corporation (including their
respective officers, directors, agents, attorneys and employees), against
all damages, loss, cost, expense (including reasonable attorneys' and
accountants' fees), obligations, claims or liability (collectively, the
"Damages") incurred by the indemnified party or parties as a result of or in
connection with the redemption of Debentures to which this Request relates.
The Participant will, at the request of the Corporation, forward to the
Corporation, a copy of the documents submitted by [Name of Representative]
in support of the request for redemption.
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IN WITNESS WHEREOF, the undersigned has executed this Redemption
Request as of ____________, _____.
[PARTICIPANT NAME]
By:______________________________________
Name:____________________________________
Title:___________________________________
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