Exhibit 4.5
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ENERGYNORTH NATURAL GAS, INC.
(Formerly Gas Service, Inc.)
TO
BANK OF NEW HAMPSHIRE
Trustee
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SIXTH SUPPLEMENTAL INDENTURE
Dated as of
, 1997
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Supplemental
To
General and Refunding Mortgage Indenture
Dated as of June 30, 1987
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SIXTH SUPPLEMENTAL INDENTURE
THIS SIXTH SUPPLEMENTAL INDENTURE dated and entered into as of
__________, 1997, by and between ENERGYNORTH NATURAL GAS, INC., a corporation
duly organized and existing under and by virtue of the laws of the State of New
Hampshire, having its principal office and place of business in Manchester,
County of Hillsborough, in the State of New Hampshire (hereinafter called the
"Company") and BANK OF NEW HAMPSHIRE, a New Hampshire trust company, as
successor trustee to Bank of New Hampshire, N.A., having its principal corporate
trust office and place of business in Concord, New Hampshire, and a current
mailing address of 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000, as
Trustee (hereinafter referred to as the "Trustee") under the General and
Refunding Mortgage Indenture dated as of June 30, 1987 (the "Original
Indenture") from Gas Service, Inc. (now named EnergyNorth Natural Gas, Inc.), as
heretofore amended and supplemented by a First Supplemental Indenture dated as
of October 1, 1988, a Second Supplemental Indenture dated as of August 31, 1989,
a Third Supplemental Indenture dated as of September 1, 1990, a Fourth
Supplemental Indenture dated as of January 10, 1992, and a Fifth Supplemental
Indenture dated as of February 1, 1995 (said General and Refunding Mortgage
Indenture together with the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture, the Fifth Supplemental Indenture, and this Sixth
Supplemental Indenture, being sometimes hereinafter referred to as the
"Indenture"); and
WHEREAS, the Company by resolution of its Board of Directors duly
adopted has determined forthwith to issue an additional series of bonds to be
secured by the Indenture to be known and designated as "First Mortgage Bonds
_____% Series E Due 2027" (said bonds being referred to as the "Series E Bonds"
or "bonds of Series E"); and
WHEREAS, on or subsequent to the date of the Fourth Supplemental
Indenture, the Company has constructed or acquired certain additional properties
which are subject in any event to the lien and effect of the Indenture, but
nevertheless, in accordance with the provisions of Section 17.01(a) of the
Indenture, the Company desires to execute and deliver this Sixth Supplemental
Indenture for the purpose of specifically conveying to the Trustee upon the
trusts and for the purpose of the Indenture all of such additional properties
constructed or acquired and now owned by the Company, except property of the
character of that expressly excepted and excluded from the lien of the
Indenture; and
WHEREAS, the Company desires in accordance with the provisions of
Section 5.01(e) of the Indenture to execute this Sixth Supplemental Indenture
for the purpose of creating the Series E Bonds and providing for the terms
thereof as contemplated in Section 2.03 of the Indenture, all as set forth in
this Sixth Supplemental Indenture; and
WHEREAS, the Company has, by proper resolution of its Board of
Directors, duly voted to execute, acknowledge and file with the Trustee and to
request the Trustee to execute this Sixth Supplemental Indenture; and
WHEREAS, each of the Series E Bonds is to be substantially in the
following form, to-wit:
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(FORM OF SERIES E BOND)
No. RD- $
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ENERGYNORTH NATURAL GAS, INC.
First Mortgage Bond
% Series E Due 2027
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ENERGYNORTH NATURAL GAS, INC., a corporation of the State of New
Hampshire (hereinafter called the "Company"), for value received, hereby
promises to pay to ______________________________, or registered assigns, the
principal sum of __________________________________________________
($__________) at the principal corporate trust office of Bank of New Hampshire
(hereinafter called the "Trustee", which term shall include its successors in
the trusts hereinafter referred to) in the City of Concord (or at the principal
corporate trust office of its then successor Trustee) or, at the option of the
registered owner hereof, at the office of any other paying agent appointed by
the Company, on __________ and to pay interest thereon from the date hereof at
the rate per annum specified in the title of this Bond, semi-annually on
__________ and __________ in each year commencing __________ and to pay interest
on any overdue installment of principal, premium, if any, and interest at the
rate of ____% per annum (to the extent legally enforceable) (in each case
computed on the basis of a 360-day year of twelve 30-day months) at the
principal corporate trust office of the Trustee or, at the option of the
registered owner hereof, at the office of any such paying agent, until the
principal hereof shall have been paid in full; such interest payable on any
__________ or __________ shall (subject to certain exceptions provided in the
Indenture referred to below) be paid to the person in whose name this Bond or
the bond in exchange or substitution for which this Bond shall have been issued,
shall have been registered at the close of business on the __________ or
__________, as the case may be, next preceding such __________ of __________.
At the option of the person in whose name this Bond shall have been registered,
principal, premium, if any, and interest may be paid by wire transfer in
immediately available funds or by check payable to the order of and mailed to
the address of the person entitled thereto as the name and address of such
person shall appear on the bond register maintained pursuant to the Indenture.
Both principal and premium, if any, and interest shall be paid in any coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts.
The Company hereby agrees that the interest rate per annum on this
Bond specified in the title of this Bond and the interest rate of ____% per
annum on any overdue installment of principal, premium, if any, and interest
shall be the applicable interest rates, notwithstanding the rate of interest
prescribed by statute from time to time.
This Bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, the aggregate principal amount of which is not limited except as
such may be limited
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by law, to be issued in series with distinctive designations, the series of
which this Bond is one, designated as Series E, being limited to an aggregate
principal amount of twenty-two million dollars ($22,000,000), all bonds of all
series, including the bonds of Series E, to be issued under and secured by a
certain General and Refunding Mortgage Indenture dated as of June 30, 1987 by
and between the Company and Bank of New Hampshire, N.A., Trustee (said General
and Refunding Indenture, as heretofore or hereafter amended and supplemented,
being hereinafter referred to as the "Indenture"), to which Indenture reference
is hereby made for a description of the mortgaged and pledged property, the
nature and extent of the security and benefit thereof, the terms and conditions
under which the bonds may be issued and secured, the rights and remedies under
the Indenture of the bondholders, and the rights and obligations under the
Indenture of the Company and the Trustee. An executed counterpart of the
Indenture is on file at the principal corporate trust office of the Trustee.
As stated therein, the Indenture may in certain respects be modified
without the consent of the bondholders and may, with the consent of holders of
not less than sixty-six and two-thirds percent (66-2/3%) in principal amount of
the bonds of all series then issued and outstanding, be modified in certain
other respects in each case upon the conditions and in the manner provided in
the Indenture, but, among other restrictions, no such modification shall affect
or impair the obligation of the Company in respect of the principal of and
premium, if any, and interest on this Bond.
In the event of certain defaults, the principal of this Bond may be
declared or may become due and payable prior to maturity in the manner and with
the effect provided in the Indenture. As stated in the Indenture, a majority in
aggregate principal amount of the bonds of all series at any time outstanding
may waive a past default and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on any bond, or a default in
respect of a covenant or provision of the Indenture which cannot be modified
without the consent of the holder of each outstanding bond affected.
No reference herein to the Indenture and no provisions of this Bond or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Bond as herein set forth; provided that no recourse under or
upon any obligation, covenant or agreement contained in the Indenture, or in
this Bond, or under any judgment obtained against the Company, or by the
enforcement of any assessment or penalty, or by an legal or equitable
proceedings by virtue of any constitution or statute or rule of law or
otherwise, shall be had against any incorporator, stockholder, officer, or
director, past, present or future, as such of the Company, or of any predecessor
or successor company, either directly of through the Company or such predecessor
or successor company, or otherwise, for the payment for or to the Company
or any receiver thereof, or for or to the holder of this Bond, of any sum that
may be due and unpaid by the Company upon and any and all personal liability of
every name and nature, whether at common law or in equity or by statute or by
constitution or otherwise, or any such incorporator, stockholder, officer or
director, as such, for the payment for or to the Company or any receiver
thereof, or for or to the holder of this Bond of any sum that may remain due and
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unpaid upon this Bond is hereby expressly waived and released as a condition of
and as part of the consideration to the execution of the Indenture and the issue
of this Bond; provided, however, that nothing herein or in the Indenture
contained shall be taken to prevent recourse to and the enforcement of the
liability, if any, of any stockholder or subscriber to capital stock upon or in
respect of shares of capital stock not fully paid or the liability of any
stockholder or subscriber to capital stock under any agreement entered into by
such stockholder or subscriber to capital stock.
Upon compliance with the conditions prescribed in the Indenture and
upon surrender of this Bond, accompanied by a written instrument of assignment
in form satisfactory to the Trustee and duly executed by the registered owner in
person or by duly authorized attorney, at the principal corporate trust office
of the Trustee in the City of Concord, or at such other agency of the Company as
shall be maintained for such proposes, this Bond is transferable on the bond
register and thereupon a new bond or bonds of the same series and for a like
aggregate principal amount of authorized denominations will be issued in the
name of the transferee.
The Company, the Trustee, any authenticating agent, any paying agent,
and any registrar may deem and treat the registered holder hereof as the
absolute owner of this Bond (whether or not this Bond shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Company or any registrar), for the purpose of receiving payment hereof
or on account hereof or interest or any premium hereon (subject to certain
provisions provided in the Indenture) and for all other purposes, and neither
the Company, the Trustee, any authenticating agent, any paying agent, nor any
registrar shall be affected by any notice to the contrary.
The bonds of Series E consist of fully registered bonds without
coupons in the denominations of one thousand dollars ($1,000), and multiples
thereof. This Bond, singly or with other bonds of the same series and
registered in the same name, may be exchanged for one or more bonds of the same
series and for a like aggregate principal amount in authorized denominations.
All bonds to be so exchanged shall be surrendered at the principal corporate
trust office of the Trustee in the City of Concord, or at such other agency of
the Company as shall be maintained for such purpose, and, if required by the
Trustee, accompanied by written instruments of assignment in form satisfactory
to the Trustee and duly executed by the registered owner in person or by duly
authorized attorney.
At the option of the Company and upon the notice and otherwise in the
manner and with the effect as provided in the Indenture, and particularly in the
Sixth Supplemental Indenture dated as of __________, 1997 (the "Sixth
Supplemental Indenture"), any or all of the bonds of Series E may be redeemed by
the Company at any time on or after ________, 2002, upon payment of 104% of the
principal amount of the bonds of Series E to be redeemed, declining by 1% of the
principal amount per year for each of the succeeding four years, and accrued
interest thereon to the date of such redemption.
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Notice of redemption shall be given by mail, first class postage
prepaid, to the holders of the bonds to be redeemed at least thirty (30) days
but no more than sixty (60) days prior to the date fixed for redemption, at
their last addresses as they shall appear on the register, or otherwise as
provided in the Indenture.
In case of the call for payment of less than the whole principal
amount of this Bond, upon payment of the redemption price to the registered
owner hereof and surrender of this Bond, there shall be issued to such
registered owner another bond of Series E in principal amount equal to the
unredeemed balance hereof.
This Bond shall be governed by and construed in accordance with the
law of the State of New Hampshire.
This Bond shall not be valid or obligatory for any purpose or entitled
to any security or benefit under the Indenture until the certificate of
authentication hereon shall have been signed by the Trustee or any
authenticating agent on its behalf.
IN WITNESS WHEREOF, EnergyNorth Natural Gas, Inc. has caused this Bond
to be executed in its name by its President or one of its Vice Presidents by his
or her signature or a facsimile thereof, and its corporate seal or a facsimile
thereof to be affixed hereto or imprinted hereon and attested by the signature
or facsimile signature of its Secretary or an Assistant Secretary.
Dated: ENERGYNORTH NATURAL GAS, INC.
By:
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President
[Corporate Seal]
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ATTEST:
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Secretary
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(FORM OF CERTIFICATE OF AUTHENTICATION)
This is one of the First Mortgage bonds ___% Series E Due 2027
referred to in the within-mentioned Sixth Supplemental Indenture dated as of
__________, 1997.
BANK OF NEW HAMPSHIRE,
AS TRUSTEE
By:
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Authorized Officer
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(FORM OF ASSIGNMENT)
For value received, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please Insert Social Security Or Other
Identifying Number of Assignee)
the within bond of EnergyNorth Natural Gas, Inc. and all rights thereunder,
hereby irrevocable constituting and appointing ____________________ attorney to
transfer said bond on the register of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature(s) to this assignment must correspond with the name(s)
as written upon the face of the within bond in every particular, without
alteration or enlargement or any change whatever.
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NOW THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH that, in
consideration of the premises, and of the acceptance and purchase of the Series
E Bonds by the registered owner thereof, and of the mutual covenants herein
contained, and of the sum of $10 duly paid to the Company by the Trustee and of
other good and valuable consideration, the receipt whereof is hereby
acknowledged, and for the purpose of securing the due and punctual payment of
the principal of, and premium, if any, and interest on the bonds which have been
or shall be at any time issued and outstanding under the Indenture, and for the
purpose of securing the faithful performance and observance of all covenants and
conditions set
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forth in the Indenture and/or in any supplemental indenture, the Company has
executed and delivered this Sixth Supplemental Indenture, has given, granted,
bargained, sold, warranted, pledged, assigned, transferred, mortgaged, created a
security interest in, conveyed and confirmed, and by these presents does give,
grant, bargain, sell, warrant, pledge, assign, transfer, mortgage, create a
security interest in, convey and confirm (with mortgage covenants) unto Bank of
New Hampshire, Trustee, as herein provided, and its successor or successors in
the trust hereby created, and to its or their assigns, forever, all and
singular, the plants, rights, permits, franchises, easements and property, real,
personal, and mixed that has been acquired by the Company subsequent to January
10, 1992, together with the rents, issues, and profits thereof (including,
without limiting the generality of the foregoing, all real property specifically
described in Schedule A hereto); except such of said properties, rights or
interests therein as may have been or may be released by the Trustee, or sold
and disposed of, in whole or in part, as permitted by the provisions of the
Indenture;
SUBJECT, HOWEVER, to Permitted Liens (as that term is defined in Article I
of the Indenture);
AND SUBJECT FURTHER, to all defects and limitations of title and to all
other liens, charges, encumbrances, reservations, exceptions, exclusions,
restrictions, conditions, limitations, covenants, and interests existing at the
time of the acquisition of said properties, rights, or interests, including,
without limitation, the General and Refunding Mortgage Indenture dated as of
June 30, 1987, as amended and supplemented, between Manchester Gas Company and
Bank of New Hampshire, N.A. (the "Manchester Gas General and Refunding
Indenture") and the General and Refunding Mortgage Indenture dated as of June
30, 1987, as amended and supplemented, between Concord Natural Gas Corporation
and Bank of New Hampshire, N.A. (the "Concord Gas Indenture"), and any
substitutions, replacements, additions, betterments, extensions, and
enlargements thereof, none of which substantially interfere with the free use
and enjoyment by the Company of the property and rights hereinbefore described
for the general purposes and uses of the Company's gas business;
BUT SPECIFICALLY RESERVING, EXCEPTING AND EXCLUDING from this Sixth
Supplemental Indenture and from the grant, conveyance, mortgage, transfer and
assignment herein contained, all property, interests, and rights of the kind and
to the extent specified in subclauses (a) through (l), inclusive, including the
proviso thereto, of the granting clauses, on pages 9, 10, and 11 of the Original
Indenture.
TO HAVE AND TO HOLD all said plants, rights, permits, franchises,
easements, and property hereby conveyed, assigned, pledged, or mortgaged or
intended so to be, unto the Trustee, its successor or successors in trust, and
to its and their assigns forever;
BUT IN TRUST, NEVERTHELESS, for the additional and equal pro rata benefit,
security, and protection of the holders from time to time of all bonds
outstanding hereunder, without priority of one bond over any other (except as
provided in Section 8.04 of the Indenture and except as any special sinking,
purchase, amortization, improvement, or other fund
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established in accordance with the provisions of the Indenture may afford
additional or special security for the bonds of any particular series and except
independent security as provided in Section 2.03 of the Indenture), and upon the
trusts and subject to the conditions set forth in the Indenture;
PROVIDED, HOWEVER, that the maximum amount of bonds secured hereby is
$66,000,000 which amount includes $5,000,000 principal amount of bonds of Series
A, $7,000,000 principal amount of bonds of Series B, $10,000,000 principal
amount of bonds of Series C, $5,000,000 principal amount of the bonds of Series
D, $22,000,000 principal amount of Series E and premium, if any, interest and
default penalties, if any, on such bonds of Series A, Series B, Series C, Series
D, and Series E together with any advances made by the Trustee to protect its
interest in the trust estate. The maximum amount of bonds secured hereby shall
be increased upon the issuance of any additional series of bonds as provided in
a supplemental indenture hereto establishing such series of bonds. Pursuant to
the provisions of the First Supplemental Indenture dated as of October 1, 1988,
the Company has heretofore conveyed the mortgaged and pledged property to the
Trustee under the Concord Gas Indenture and to the Trustee under the Manchester
Gas General and Refunding Indenture as additional security for the bonds issued
under said indentures.
PROVIDED, HOWEVER, and these presents are upon the condition, that if the
Company shall pay or cause to be paid or make appropriate provisions for the
payment unto the holders of the outstanding bonds of the principal, premium, if
any, and interest to become due thereon at the times and in the manner
stipulated therein and in this Indenture, and shall pay or cause to be paid all
other sums payable under this Indenture by the Company, then this Supplemental
Indenture and the estate and rights hereby granted shall, pursuant to the
provisions of Article XIII of the Original Indenture, cease, determined and be
void, but otherwise shall be and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED, upon the trust and for
the purposes aforesaid and in order, pursuant to the terms of the Indenture, to
provide for the issuance under the Indenture of Series E Bonds and to fix the
terms and conditions of the Series E Bonds and in order to modify and amend the
Indenture in the particulars and to the extent hereinafter in this Sixth
Supplemental Indenture specifically provided, the Company hereby covenants and
agrees with the Trustee as follows:
ARTICLE I
SERIES E BONDS
(S)1.1. Title and Terms of Series E Bonds. There shall be a series of
bonds designated "First Mortgage Bonds ____% Series E Due 2027" (said bonds
being referred to as the "Series E Bonds" or "bonds of Series E"). The Series E
Bonds shall be limited in aggregate principal amount to twenty-two million
dollars ($22,000,000), shall be issuable only as fully registered
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bonds without coupons, and shall be issued substantially in the form
hereinbefore set forth. The Series E Bonds shall mature on __________, 2027 and
may be issued in denominations of one thousand dollars ($1,000) and any multiple
thereof.
The Series E Bonds shall bear interest (computed on the basis of a
360-day year of twelve 30-day months), until payment of the principal thereof
has been made or duly provided for, at the rate per annum specified in the title
of the Series E Bonds, payable semi-annually on __________ and __________ in
each year, commencing on ____________, 1998 and (to the extent legally
enforceable) to pay interest at the rate of ____% per annum on any overdue
installment of principal, premium, if any, and interest.
Each bond of Series E shall be dated the date of its authentication
and interest shall be payable on the principal represented thereby from the date
thereof.
Interest on any Series E Bond shall be paid to the person in whose
name such bond (or, notwithstanding the cancellation thereof, the bond in
exchange or substitution for which such bond shall have been issued) is
registered at the close of business on the applicable record date; provided,
however, that if the Company shall default in the payment of the interest due on
any interest payment date on the principal represented by any Series E Bond,
such defaulted interest shall be paid to the person in whose name such bond (or
any bond issued upon registration of transfer or exchange thereof) is registered
on a subsequent record date established by notice given by mail by or on behalf
of the Company to the holders of Series E Bonds not less than ten (10) days
preceding such subsequent record date. The term "record date" shall mean, with
respect to any semiannual interest payment date for the Series E Bonds, the
close of business on the __________ day of __________ or the __________ day of
_______, as the case may be, next preceding such interest payment date, or with
respect to any payment of defaulted interest, the close of business on any
subsequent record date established as provided above which shall be at least
five (5) business days prior to the payment date for such defaulted interest.
At the option of the registered owner, principal, premium, if any, and
interest on the Series E Bonds may be paid by wire transfer in immediately
available funds or by certified check payable to the order of and mailed to the
address of the person entitled thereto as the name and address of such person
shall appear on the bond register maintained pursuant to Section 2.08 of the
Indenture. The principal of, premium, if any, and interest on the Series E
Bonds shall be payable in any coin or currency of the United States of America
which, at the time of payment, is legal tender for the payment of public and
private debts, at the principal corporate trust office of the Trustee in the
City of Concord, or at the principal corporate trust office of its successor as
Trustee, or, at the option of the holder, at the principal office of any other
paying agent appointed by the Company for the purpose.
(S)1.2. Original Issue of Series E Bonds. Provided that no event of
default has occurred and is continuing, at any time after the execution and
delivery of this Sixth Supplemental Indenture, upon the application of the
Company, the Trustee shall authenticate and
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deliver to or upon the order of the Company the entire twenty-two million
dollars ($22,000,000) in aggregate principal amount of bonds of Series E upon
receipt by the Trustee of:
(a) An Officers' Certificate, Engineer's Certificate,
Accountant's Certificate and Opinion of Counsel complying with the
requirements of Section 4.01 of the Indenture with respect to such Property
Additions as is sufficient to constitute a Net Bondable Capacity equal to
or exceeding $22,000,000;
(b) The instruments required by Section 5.01 of the
Indenture; and
(c) The Series E Bonds duly executed by the Company.
(S)1.3. Optional Redemption of Series E Bonds. Notwithstanding any
provisions in Article VIII or Article IX of the Indenture, the bonds of Series E
shall be subject to redemption only in the manner and with the effect provided
in this Article I. The Company shall have the option, at any time, on or after
__________, 2002, of redeeming the outstanding Series E Bonds, either in whole
or in part (but if in part then in units of $100,000 or any integral multiple of
$10,000 in excess thereof), by payment of 104% of the principal amount of the
Series E Bonds to be prepaid, declining by 1% of the principal amount per year
for each of the succeeding four years, and accrued interest thereon to the date
of such prepayment. Any redemption of a Series E Bond pursuant to Section 10.10
of the Indenture shall be at a redemption price determined in the manner set
forth in this (S)1.3. The entire remaining principal amount of the bonds of
Series E shall become due and payable on __________, 2027.
Notwithstanding any provision to the contrary under any Section of the
Indenture, in the case of the redemption of only a portion of the outstanding
Series E Bonds, the Trustee shall prorate the principal amount of such bonds to
be redeemed among all holders of outstanding Series E Bonds in proportion to the
outstanding principal amount of such bonds held by each holder. The aggregate
principal amount of each partial redemption of Series E Bonds shall be allocated
in units of $1,000, or integral multiples thereof, among the holders of such
bonds at the time outstanding, in proportion, as nearly as practicable, to the
respective unpaid principal amounts of such bonds held thereby, with adjustment,
to the extent practicable, to equalize for any prior redemption not made in
exactly such proportion.
(S)1.4. Limited Right of Redemption Upon Death of a Beneficial Owner.
Unless the Series E Bonds have been declared due and payable prior to their
maturity by reason of an event of default, the representative of a deceased
owner of an interest in the Series E Bonds ("Beneficial Owner") has the right to
request redemption of all or part of his or her interest in the Bonds, expressed
in integral multiples of $1,000 principal amount, for payment prior to maturity.
The Company will redeem the same subject to the limitations that the Company
will not be obligated to redeem during the period beginning with the original
issuance of the Series E Bonds of this series and ending ____________________,
and during any twelve month period ending ____________________ thereafter, (i)
at the request a deceased Beneficial Owner any interest in the Series E Bonds
which exceeds an aggregate principal amount of
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$25,000 or (ii) interests in the Series E Bonds in an aggregate principal amount
exceeding $500,000. A Redemption Request, as hereinafter defined, may be
presented to the Trustee at any time and in any principal amount. If the
Company, although not obligated to do so, chooses to redeem interests of a
deceased Beneficial Owner in the Series E Bonds in any such period in excess of
the $25,000 limitation, 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 $500,000 aggregate limitation for such period or any
succeeding period.
Subject to the $25,000 and $500,000 limitations, the Company will upon
the death of any Beneficial Owner redeem the interests of the Beneficial Owner
in the Series E Bonds within 60 days following receipt by the Trustee of a
Redemption Request from such Beneficial Owner's personal representative, or
surviving joint tenant(s), tenant(s) by the entirety or tenant(s) in common, or
other persons entitled to effect such a Redemption Request. If Redemption
Requests exceed the aggregate principal amount of interests in Series E Bonds
required to be redeemed during any twelve-month period, such excess Redemption
Requests will be applied to successive periods, regardless of the number of
periods required to redeem such interests.
A Redemption Request may be made by delivering a request to the
Depository Trust Company or any successor depository ("Depository"), in the case
of a participating firm (a "Participant") which is the Beneficial Owner of such
interest, or to the Participant through whom the Beneficial Owner owns such
interest, in form satisfactory to the Participant, together with evidence of
death and authority of the representative satisfactory to the Participant and
Trustee. A surviving joint tenant, tenant in common or a tenant by the entirety
or other person seeking the redemption of an interest in Series E Bonds by
reason of the death of another may make the request for redemption and shall
submit such other evidence of the right to such redemption as the Participant
shall require. The request shall specify the principal amount of interest in the
Series E Bonds to be redeemed. A request for redemption in form satisfactory to
the Participant and accompanied by the documents relevant to the request as
above provided, together with a certification by the Participant that it holds
the interest on behalf of the deceased Beneficial Owner with respect to whom the
request for redemption is being made (a "Redemption Request"), shall be provided
to the Depository by a Participant and the Depository will forward the request
to the Trustee. Redemption Requests shall be in form satisfactory to the
Trustee.
The price to be paid by the Company for an interest in the Series E
Bonds to be redeemed pursuant to a request on behalf of a deceased Beneficial
Owner is one hundred percent (100%) of the principal amount thereof plus accrued
but unpaid interest to the date of payment. Subject to arrangements with the
Depository, payment for an interest in the Bonds which are to be redeemed shall
be made to the Depository upon presentation of Bonds to the Trustee for
redemption in the aggregate principal amount specified in the Redemption
Requests submitted
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to the Trustee by the Depository which are to be fulfilled in connection with
such payment. Any acquisition of Series E Bonds by the Company other than by
redemption at the option of a representative on behalf of a deceased Beneficial
Owner shall not be included in the computation of either the $25,000 or $500,000
limitations for any period.
Interests in the Series E Bonds 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 in common, tenant by the entirety,
or joint tenant will be deemed the death of a Beneficial Owner. The death of a
person who, during such person's lifetime, was entitled to substantially all of
the rights of a Beneficial Owner of an interest in the Series E Bonds 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 and the Trustee. Such interest shall be
deemed to exist in typical cases of nominee ownership, ownership under the
Uniform Gifts to Minors Act or the Uniform Transfer to Minors Act, community
property or other joint ownership arrangements between a husband and wife
(including individual retirement accounts or Xxxxx 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 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 the
Company gives notice of its election to redeem the Series E Bonds, the Series E
Bonds which are the subject of such Redemption Request shall not be eligible for
redemption pursuant to the Company's option to redeem but shall remain subject
to fulfillment pursuant to such Redemption Request.
Subject to the provisions of the immediately preceding paragraph, any
Redemption Request may be withdrawn upon delivery of a written request for such
withdrawal given to the Trustee by the Depository prior to ____________________,
in the case of the initial period, or prior to ____________________, in the case
of the subsequent twelve-month period, or prior to payment for redemption of the
interest in the Series E Bonds by reason of the death of a Beneficial Owner.
Because of the limitations of the Company's requirement to redeem, no
Beneficial Owner can have any assurance that his or her interest in the Series E
Bonds will be paid prior to maturity.
(S)1.5. Home Office Payment. The Company may enter into a written
agreement with any holder of Series E Bonds providing that payment of such bonds
at stated maturity or when called for redemption in part be made directly by
mail, wire transfer or in any other manner to the holder thereof without
presentation or surrender thereof if there shall be delivered to the Trustee an
agreement (which may be a composite with other such agreements) between the
Company and such holder (or other person acting as agent for such holder or for
whom such holder is a nominee) that payment shall be so made and that in the
event the holder thereof shall
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sell or transfer any such bonds it will, prior to the delivery of such bonds,
make a proper notation of the amount of principal which has been paid thereon to
the date of transfer. The Trustee shall not be liable or responsible to any such
holder or transferee or to the Company or to any other person for any act or
omission to act on the part of the Company or any such holder in connection with
any such agreement. The Company will indemnify and save the Trustee harmless
against any liability resulting from any such act or omission and against any
liability resulting from any action taken by the Trustee in accordance with the
provisions of any such agreement.
(S)1.6. Notice of Redemption of Series E Bonds. Prior to any
redemption of bonds of Series E, the Trustee, in the name and on behalf of the
Company, shall mail, by first class postage prepaid, or prepaid overnight
courier, a notice of redemption to each registered holder of a bond to be
redeemed (in whole or in part) at the last address of such holder appearing on
the bond register. Such notice shall be mailed not less than thirty (30) days
but no more than sixty (60) days prior to the day fixed for redemption and shall
conform to the requirements of Section 8.02 of the Indenture. Such notice
shall, in any case, specify (i) the date of such redemption, (ii) the principal
amount of such holder's Series E Bonds to be redeemed on such date, and (iii)
accrued interest payable in connection with such redemption.
(S)1.7. Waiver of Presentment and Surrender; Replacement of Bonds.
(a) With respect to Series E Bonds and in accordance with the
provisions of Section 8.07 of the Indenture, there shall be no requirement that
such bonds be presented or surrendered to the Trustee at the time of any payment
on such bonds including at stated maturity; and
(b) Notwithstanding the provisions of Section 2.12 of the
Indenture, the requirements of said Section shall not apply to the extent that
other provision is made in any agreement between the Company and the original
purchasers or any holder of a Series E Bond, so long as a copy of such agreement
is provided to the Trustee.
ARTICLE II
MISCELLANEOUS
(S)2.1. The provisions of this Sixth Supplemental Indenture shall be
effective from and after the execution hereof; and the Indenture, as previously
and as hereby modified and amended, shall remain in full force and effect.
(S)2.2. Each reference in the Indenture to any article, section,
term, or provision of the Indenture shall mean and be deemed to refer to such
article, section, term, or provision of the Indenture, as amended, except where
the context otherwise indicates.
15
(S)2.3. In the event of any inconsistency between the provisions of
this Sixth Supplemental Indenture and the provisions of the Original Indenture,
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, or the Fifth
Supplemental Indenture, this Sixth Supplemental Indenture shall control.
(S)2.4. All terms contained in this Sixth Supplemental Indenture
which are defined in the Original Indenture, as amended and supplemented by the
First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, and the Fifth
Supplemental Indenture shall, except as otherwise specifically provided herein
or as the context clearly otherwise indicates, have the meanings given to such
terms in the Original Indenture, as so amended and supplemented. The use and
construction herein of terms is in accordance with the use and construction
thereof in the Original Indenture, as amended and supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, and the Fifth
Supplemental Indenture.
(S)2.5. This Sixth Supplemental Indenture shall become void when the
Indenture shall be void.
(S)2.6. The covenants, stipulations, promises, and agreements
contained in this Sixth Supplemental Indenture, made by or on behalf of the
Company or the Trustee, respectively, shall inure to the benefit of and bind
their respective successors and assigns.
(S)2.7. This Sixth Supplemental Indenture is, among other things, a
security agreement and is signed as such by the Company and by the Trustee as
secured party.
(S)2.8. This Sixth Supplemental Indenture may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
(S)2.9. The cover of this Sixth Supplemental Indenture and all
article and descriptive headings are inserted for convenience only, and shall
not affect any construction or interpretation hereof.
(S)2.10. This Sixth Supplemental Indenture shall be governed by, and
construed and enforced in accordance with, the laws of the State of New
Hampshire.
ARTICLE III
AMENDMENT TO INDENTURE
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(S)3.1. Article X of the Original Indenture shall be amended by
substituting "$250,000" for "$100,000" in Sections 10.05(a)(2) and 10.05(a)(3),
so as to increase the value of mortgaged property sold or exchanged by the
Company requiring independent engineer and accountant certificates.
ARTICLE IV
CONFIRMATION
(S)4.1. As supplemented and modified by this Sixth Supplemental
Indenture, this Indenture is in all respects ratified and confirmed, and this
Indenture and the First, Second, Third, Fourth, Fifth, and Sixth Supplemental
Indentures shall be read, taken and construed as one and the same instrument.
IN WITNESS WHEREOF, ENERGYNORTH NATURAL GAS, INC. has caused this
instrument to be executed in its corporate name by its President or one of its
Vice-Presidents and by its Treasurer or one of its Assistant Treasurers and its
corporate seal to be hereunto affixed and to be attested by its Secretary or
Assistant Secretary, and BANK OF NEW HAMPSHIRE, to evidence its acceptance of
the trust hereby created, has caused this instrument to be executed in its
corporate name by its Trust Officer and its corporate seal to be hereunto
affixed and to be attested by its Secretary, all as of the day and year first
above written.
ENERGYNORTH NATURAL GAS, INC.
By:
----------------------------------------
Its:
---------------------------------------
[CORPORATE SEAL]
and:
---------------------------------------
Its:
---------------------------------------
ATTEST:
--------------------------------
Its:
----------------------------
17
Signed, sealed and delivered
by EnergyNorth Natural Gas, Inc.
in the presence of:
--------------------------------
--------------------------------
00
XXXX XX XXX XXXXXXXXX
By:
----------------------------------------
Its:
---------------------------------------
[Corporate Seal]
ATTEST:
--------------------------------
Its:
----------------------------
Signed, sealed and delivered
by Bank of New Hampshire
in the presence of:
--------------------------------
--------------------------------
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STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH, SS.
On this ____ day of __________, 1997 before me personally appeared
____________________ and ____________________, to me personally known, who being
by me duly sworn, did say that they are ____________________ and
________________ ____________________, respectively, of ENERGYNORTH NATURAL GAS,
INC., that the seal affixed to the foregoing instrument is the corporate seal of
said corporation, and that said instrument was signed by them and sealed on
behalf of said corporation, and that said instrument was signed by them and
sealed on behalf of said corporation by authority of its Board of Directors; and
the said ____________________ and ____________________ acknowledged said
instrument to be the free act and deed of said corporation.
-------------------------------------------
Notary Public
[NOTARIAL SEAL]
My Commission expires:
-----------------
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH, SS.
On this ____ day of __________, 1997 before me personally appeared
____________________ and ____________________, to me personally known, who being
by me duly sworn, did say that they are ____________________ and
________________ ____________________, respectively, of BANK OF NEW HAMPSHIRE,
that the seal affixed to the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed by them and sealed on behalf of
said corporation, and that said instrument was signed by them and sealed on
behalf of said corporation by authority of its Board of Directors; and the said
____________________ and ____________________ acknowledged said instrument to be
the free act and deed of said corporation.
-------------------------------------------
Notary Public
[NOTARIAL SEAL]
My Commission expires:
------------------
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