EXHIBIT 4.12(b)
CONFORMED COPY
GREELEY GAS COMPANY
TO
CENTRAL BANK DENVER, NATIONAL ASSOCIATION
(FORMERLY THE CENTRAL BANK AND TRUST COMPANY)
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NINTH SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 1, 1991
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Supplementing and Amending Indenture of Mortgage and
Deed of Trust dated as of March 1, 1957 and creating
First Mortgage Bonds, 9.40% Series J, Due May 1, 2021
TABLE OF CONTENTS
Section Heading
Page
Parties................................................................................. 1
Recitals................................................................................ 1
ARTICLE ONE
Assumption of Indenture Obligations;
Mortgage of Property
Section 1.01............................................................................ 2
ARTICLE TWO
Series J Bonds and Provisions Applicable Thereto
Section 2.01. Series J Bonds........................................... 2
Section 2.02. Place and Form of Payment on Series J Bonds.............. 4
Section 2.03. Form of Bonds............................................ 4
Section 2.04. Authentication of Series J Bonds......................... 4
ARTICLE THREE
Miscellaneous Provisions
Section 3.01. Consolidation, Merger or Sale............................ 4
Section 3.02. Counterparts............................................. 4
Section 3.03. Defined Terms............................................ 4
Section 3.04. Effect of Headings and Table of Contents................. 4
Signatures.............................................................................. 5
Attachments:
Exhibit A-Form of Series J Bond
Schedule 1-Property Description
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This is a NINTH SUPPLEMENTAL INDENTURE, dated as of April 1, 1991, between
GREELEY GAS COMPANY, a corporation organized and existing under the laws of the
State of Delaware (the "Corporation") having its principal place of business in
Denver, Colorado, party of the first part, and CENTRAL BANK DENVER, NATIONAL
ASSOCIATION (formerly named The Central Bank and Trust Company), organized and
existing under the laws of the United States (the "Trustee"), as Trustee, party
of the second part.
RECITALS
The background of this Ninth Supplemental Indenture is:
X. Xxxxxxx Gas Company, a Colorado corporation ("GGC") heretofore
executed and delivered to the Trustee its Indenture of Mortgage and Deed of
Trust dated as of March 1, 1957 (the "Original Indenture") to secure the payment
of the principal of, premium, if any, and interest on, all Bonds at any time
issued and outstanding thereunder, and to establish and declare the terms and
conditions UPON WHICH Bonds are to be issued and secured thereunder.
B. GGC thereafter executed and delivered to the Trustee eight
Supplemental Indentures respectively dated as of November 1, 1957, October 1,
1959, March 1, 1961, June 1, 1965, March 1, 1973, March 2, 1973, October 1, 1983
and October 1, 1985 (the Original Indenture and all Supplemental Indentures
being hereinafter sometimes collectively referred to as the "Indenture"), for
the various purposes of creating and authorizing additional series of Bonds to
be secured by the Indenture, conveying to the Trustee certain additional
property, amending the Original Indenture and correcting the description of
certain property.
C. Effective October 9, 1990 GGC and Standard Gas Supply Corporation, a
Colorado corporation, merged into the Corporation (the "Merger") and as the
survivor of the Merger the Corporation (i) succeeded to all rights, privileges,
powers and franchises of GGC including all property, real, personal and mixed
owned by GGC and (ii) assumed all debts of GGC including but not limited to all
obligations of GGC under the Indenture.
D. The Corporation proposes (1) to create and issue an additional
series of bonds to be designated "First Mortgage Bonds, 9.40% Series J, due May
1, 2021," limited in aggregate principal amount to $17,000,000 (the "Series J
Bonds"), and (2) to apply the proceeds from the sale of the Series J Bonds to
retire $7,250,000 of long term debt, reduce short-term debt, finance current
construction projects and for general corporate purposes.
E. All acts and things necessary to make the Series J Bonds, when
executed by the Company and authenticated and delivered by the Trustee, the
valid, binding and legal obligations of the Corporation, and to constitute these
presents a valid indenture and agreement according to its terms, have been done
and performed, and the execution of this Ninth Supplemental Indenture and the
issue of the Series J Bonds has in all respects been duly authorized, and the
Corporation, in the exercise of the legal right and power vested in it, executes
this Ninth Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar to the Corporation duly paid by the Trustee at or before the ensealing
and delivery hereof and for other good and valuable considerations, the receipt
whereof is hereby acknowledged, the Corporation hereby covenants to and with the
Trustee and its successors in the trusts under the Indenture, for the equal -
and pro rata benefit of all present and future holders of all Bonds issued and
to be issued under the Indenture, without any preference, priority or
distinction whatsoever, as follows:
ARTICLE ONE
Assumption of Indenture Obligations; Mortgage of Property
SECTION 1.01.
Effective October 9, 1990 the Corporation, as successor to GGC, assumes
the due and punctual payment of the principal of (and premium, if any) and
interest on all the Bonds and the performance of every covenant and condition of
the Indenture to be performed or observed by the Corporation. The Corporation in
order to better secure the principal of an interest (and premium, if any) on all
Bonds of the-Corporation at any time outstanding under the Indenture according
to their tenor and effect and the performance of and compliance with the
covenants and conditions in the Indenture contained, does hereby mortgage,
assign, grant, bargain, sell and convey unto the Trustee, and to its successors
in said trust, forever, all of the property, rights and franchises now or
hereafter acquired or constructed by the Corporation including, without
limitation, the properties described in Schedule 1 attached hereto and made a
part hereof, except property of the character specifically excepted from the
lien of the Original Indenture. In trust, nevertheless, for the same purposes
and upon the same conditions as are set forth in the Original Indenture.
ARTICLE TWO
Series J Bonds and Provisions Applicable Thereto
SECTION 2.01. SERIES J BONDS.
(a) There is hereby created under the Indenture a series of Bonds
entitled First Mortgage Bonds, 9.40% Series J, due May 1, 2021 (the "Series J
Bonds"). The aggregate principal amount of Series J Bonds that may be issued
shall be limited to $17,000,000, exclusive of Series J Bonds issued in exchange
or substitution for other Series J Bonds. The Series J Bonds shall be registered
Bonds without coupons numbered RJ-l and upward.
The Series J Bonds shall be dated and shall bear interest as provided in
Section 4.08 of the Indenture, except that the Series J Bonds issued before
November 1, 1991 (the first interest payment date for the Series J Bonds) shall
be dated as of and shall bear interest from the date of initial issuance
thereof. The Series J Bonds shall be due May 1, 2021 and shall bear interest on
their unpaid principal amounts from their dates until due and payable at the
rate of 9.40% per annum (computed on the basis of a 360-day year of twelve
30-day months) payable semi-annually on May 1 and November 1 in each year, and
at the rate of 10.40% per annum on any overdue principal, premium, if any, and
(to the extent legally enforceable) on any overdue installment of interest.
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(b) The Series J Bonds shall be redeemable at the option of the
Corporation at any time, either as a whole or in part in multiples of $1,000 at
a redemption price equal to 100% of the principle amount of the bonds being
redeemed plus interest accrued thereon to the date of redemption, plus a premium
equal to the Make-Whole Premium, defined below, which shall be determined three
(3) business days prior to the date of such redemption. The Corporation will
furnish notice to the Trustee and each holder of the Series J Bonds (by telecopy
or other same - day written communication confirmed by the recipient, on a date
at least two (2) business days prior to the date fixed for redemption of the
Series J Bonds) of the premium, if -applicable to such redemption and the
calculations, in reasonable detail, used to determine the amount of any such
premium.
Make - Whole Premium" shall mean, in connection with any redemption, the
excess, if any, of (i) the aggregate present value as of the date of such
redemption of each dollar of principal being redeemed and the amount of interest
(exclusive of interest accrued to the date of redemption) that would have been
payable in respect of such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate from the
respective dates on which they would have been payable, over (ii) 100% of the
principal amount of the outstanding Series J Bonds being redeemed. If the
Reinvestment Rate is equal to or higher than 9.40% the Make-Whole Premium shall
be zero.
"Reinvestment Rate" shall mean the sum of (i) 0.50% plus (ii) the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity corresponding to the remaining term of the
Series J Bonds (rounded to the nearest month). If no maturity exactly
corresponds to such remaining term of the Series J Bonds, yields for the two
published maturities most closely corresponding to such remaining term of the
Series J Bonds shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding in each of such relevant periods
to the nearest month. For the purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of determination or
the premium hereunder shall be used.
"Statistical Release" shall mean the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded U.S.
Government Securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder, then such
other reasonably comparable index which shall be designated by the holders of
sixty-six and two-thirds per cent (66-2/3%) in aggregate principal amount of the
outstanding Series J Bonds.
(c) There shall be no sinking fund for the Series J Bonds.
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SECTION 2.02. PLACE AND FORM OF PAYMENT ON SERIES J BONDS.
The principal of and premium (if any) and interest on Series J Bonds
(subject to any agreement entered into pursuant to Section 6.01 of the
Indenture) shall be payable at the operations center of the Trustee at First
Trust, N.A., St. Xxxx, Minnesota, in coin or currency of the United States of
America that at the time of such payment is legal tender for the payment of
public and private debts.
SECTION 2.03. FORMS OF BONDS.
The Series J Bonds shall be substantially in the form attached hereto as
Exhibit A.
SECTION 2.04. AUTHENTICATION OF SERIES J BONDS.
After the execution and delivery of this Ninth Supplemental Indenture, the
Corporation may execute and deliver to the Trustee, and the Trustee shall
authenticate and deliver as directed by Corporation Order, Series J Bonds in
aggregate principal amount not exceeding $17,000,000, in accordance with the
provisions of Article Three thereof.
ARTICLE THREE
Miscellaneous Provisions
SECTION 3.01. CONSOLIDATION, MERGER OR SALE.
The Corporation covenants that so long as any Series J Bonds remain
outstanding it will not without the consent of the holders of all the Series I
Bonds consolidate or merge with, or sell all or substantially all of its assets
to, any corporation unless the surviving corporation after such consolidation or
merger, or the corporation to which all such assets are sold, will have
immediately thereafter a net worth not less than the net worth of the
Corporation immediately prior to such transaction. Net worth means total assets
less total liabilities.
SECTION 3.02. COUNTERPARTS.
This Ninth Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 3.03. DEFINED TERMS.
The capitalized terms used herein which are defined in the Indenture have
the meaning therein set forth.
SECTION 3.04. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article, Section and Subsection headings contained in this Ninth
Supplemental Indenture and the Table of Contents are for convenience only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
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IN WITNESS WHEREOF, Greeley Gas Company has caused this Ninth Supplemental
Indenture to be signed in its corporate name by its President or a
Vice-President and its corporate seal to be hereunto affixed and attested by its
Secretary or Assistant Secretary, and Central Bank Denver, National Association,
as Trustee, has caused this Ninth Supplemental Indenture to be signed in its
corporate name by its Trust Officer and its corporate seal to be hereunto
affixed and attested by its Cashier as of the day and year first above written.
GREELEY GAS COMPANY
(Corporate Seal) By /s/ XXXXX X. XXXXX
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ATTEST: Vice President
/s/ XXXX X. XXXXXXXXXX
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Secretary
Witnesses:
/s/ XXXXXXX X. XXXXXX
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/s/ XXXXXXXX XXXXXXXXXX
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CENTRAL BANK DENVER,
NATIONAL ASSOCIATION
AS TRUSTEE
(Corporate Seal) By /s/ XXXXXXX X. XXXXXXX
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Trust Officer
ATTEST:
/s/ XXXXX X. FILING
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Secretary
Witnesses:
/s/ XXXXXXX XXXXXXX
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/s/ XXXXXXX XXXXXX
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STATE OF COLORADO )
) SS.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledge before me this 8th day of April,
1991, by Xxxxx X. Xxxxx as Vice President, and Xxxx X. Xxxxxxxxxx, as Secretary,
of Greeley Gas Company, a corporation.
Witness my hand and official seal.
My commission expires: 8/31/92
/s/ XXXXXXX X. CRAB
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Notary Public
STATE OF COLORADO )
) SS.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 10th day of
April, 1991, by Xxxxxxx X. Xxxxxxx, as Trust Officer, and Xxxxx X. Filing, as
Assistant Secretary, of Central Bank Denver, National Association.
Witness my hand and official seal.
My commission expires: 10-22-94
/s/ XXXXX X. BOUCNEAL_
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Notary Public
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EXHIBIT A
[FORM OF SERIES J BOND)
GREELEY GAS COMPANY
FIRST MORTGAGE BOND, 9.40% SERIES J, DUE MAY 1, 2021
No. $____________
FOR VALUE RECEIVED, GREELEY GAS COMPANY, a corporation organized and
existing under the laws of the State of Delaware (hereinafter called the
Corporation, which term shall include any successor corporation as defined in
the Indenture hereinafter referred to), hereby promises to pay to
or registered assigns,
on the first day of May, 2021
the sum of
Dollars ($ )
in coin or currency of the United States of America that at the time of payment
is legal tender for the payment of public and private debts, and to pay to the
registered owner hereof interest thereon from the date hereof, at the rate of
9.40% per annum, in like coin or currency, payable semi-annually on May 1 and
November 1 in each year, until the principal hereof shall be due and payable and
at the rate of 10.40% per annum on any overdue principal, premium, if any, and
(to the extent legally enforceable) on any overdue installment of interest.
Payments of both principal, premium, if any, and interest are to be made at the
operations office of the Trustee at First Trust, N.A., St. Xxxx, Minnesota
except as otherwise provided in an agreement which is executed pursuant to
Section 6.01 of the Indenture.
This Bond is one of an authorized issue of Bonds of the Corporation known
as its First Mortgage Bonds, not limited in aggregate principal amount except as
provided in the Indenture hereinafter mentioned, all issued and to be issued in
one or more series under and equally and ratably secured (except as any sinking,
amortization improvement, renewal or other analogous fund, established in
accordance with the provisions of the Indenture hereinafter referred to, may
afford additional Security for the Bonds of any particular series) by an
Indenture of Mortgage and Deed of Trust (hereinafter called the Original
Indenture) executed by the Corporation to The Central Bank and Trust Company
(now named Central Bank Denver, National Association), Denver, Colorado (herein
called the Trustee) dated March 1,1957, as supplemented and amended by nine
Supplemental Indentures, (the Original Indenture, as so supplemented and
amended, is hereinafter referred to as the Indenture) to which Indenture
reference is hereby made for a description of the Property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which the Bonds are and are to be secured and the rights of holders or
registered owners thereof and of the Trustee in respect of such security. Bonds
may be issued in series, for various principal sums, may bear different dates
and mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided or permitted.
This Bond is one of the Bonds described in the Indenture and designated
therein as the First Mortgage Bonds, 9.40% Series J due May 1, 2021 (hereinafter
referred to as the Series J Bonds). The Series J Bonds shall be redeemable at
the (ORIGINAL NOT LEGIBLE) of the Corporation at any time either as a whole or
in part as multiples of $1,000 at a redemption price equal to 100% of the
principal amount of the Bonds being redeemed plus interest accrued thereon to
the date of redemption, plus a premium equal to the Make-Whole Premium, which
shall be determined three (3) business days prior to the date of such
redemption.
Upon any partial redemption of this Bond, at the Option of the registered
holder hereof this Bond may be either (a) surrendered to the Trustee in exchange
for one or more new Series J Bonds, of authorized denominations registered in
the name of such holder, in an aggregate principal amount equal to the principal
amount remaining unpaid upon this Bond, or (b) submitted to the Trustee for
notation hereon of the payment of the portion of the principal hereof paid upon
such redemption.
As provided in the Indenture, (a) if and to the extent authorized by the
consent (evidenced as provided in the Indenture) of the holders of not less than
66-2/3% in aggregate principal amount of all Bonds then Outstanding that are
adversely affected thereby, such changes in, additions to or eliminations from
the Indenture as such holders and the Corporation may deem necessary or
advisable may be made by supplemental indenture; provided that no such change
shall be made without the consent of the holder of each outstanding bond that is
adversely affected that would (i) extend the stated maturity of the principal
of, or any installment of interest on, any Bond, or (ii) reduce the percentage
of the principal amount of Bonds the consent of the holders of which is required
for the authorization of any such change, addition or elimination, or (iii)
modify certain other provisions of the Indenture.
In case an Event of Default (as defined in the Indenture) shall occur and
be continuing, the principal of all the Bonds outstanding may be declared and
may become due and payable in the manner and with the effect provided in the
Indenture
This Bond is a registered Bond without coupons and is transferable by the
registered holder thereof in person or by the duly authorized attorney of such
holder on the Bond Register to be kept for the purpose at the principal office
of the Trustee as Bond Registrar and transfer agent for the Bonds, in Denver,
Colorado. Upon surrender of this Bond accompanied by written instruments of
transfer in form approved by the Trustee, duly executed by the registered holder
in person or by such attorney, and upon cancellation hereof, one or more new
Bonds of the same series and maturity, in authorized denominations, in an
aggregate principal amount equal to the principal amount remaining unpaid upon
this Bond, shall be issued to the transferee in exchange herefor, as provided in
the Indenture. The Corporation and the Trustee may deem and treat the person in
whose name this Bond is registered on the Bond Register as the absolute owner
hereof (whether or not this Bond shall be overdue) for the purpose or receiving
payment hereon, and on account hereof and for all other purposes.
No recourse shall be had for the payment of the principal of or interest
on this Bond, or in respect of this Bond or the Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Corporation or of any predecessor or successor corporation,
either directly or through the Corporation, by virtue of any constitution,
statute or rule of law or by enforcement of any assessment or penalty or
otherwise, any and all such liability of incorporators, stockholders, officers
and directors being released by the holder hereof by the acceptance of this Bond
and being likewise waived and released by the terms of the Indenture.
This Bond shall not be valid or become obligatory for any purpose until
the certificate endorsed hereon shall be signed by the Trustee under the
Indenture.
A-2
IN WITNESS WHEREOF, GREELEY GAS COMPANY has caused these presents to be
signed in its name by its President or a Vice President, and its corporate seal
to be affixed hereto and attested by its Secretary or an Assistant Secretary.
Dated:
GREELEY GAS COMPANY
By__________________________
____________ President
Attest:
_________________________________
_______________ Secretary
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[TRUSTEE'S CERTIFICATE TO BE ENDORSED ON ALL BONDS]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated herein, described
in the within-mentioned Indenture.
CENTRAL BANK DENVER,
NATIONAL ASSOCIATION,
as Trustee
By________________________________
Authorized Representative
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