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DELTA NATURAL
GAS COMPANY, INC.
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BB&T
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9580219605
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Customer Number
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00003
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NOTE
MODIFICATION AGREEMENT
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Note Number
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$ 40,000,000.00
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10/31/2002
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$40,000,000.00
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6/30/2011
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Original Amount of Note
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Original Date
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Modification Date
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This Note
Modification Agreement (hereinafter “Agreement”) is
made and entered into this 30th day of JUNE 2011 , by
and between DELTA NATURAL GAS COMPANY, INC. ,
maker(s), co-maker(s), endorser(s), or other obligor(s) on the
Promissory Note (as defined below), hereinafter also referred to
jointly and severally as Borrower(s); Branch Banking and Trust
Company of North Carolina, a banking corporation, hereinafter
referred to as Bank and
_____________________________________________________________________________________________
owners other than Borrower(s) (if any) of any property pledged to
secure performance of Borrower(s)’s obligations to Bank,
hereinafter referred to jointly and severally as
Debtor(s)/Grantor(s).
Witnesseth : Whereas, Borrower(s) has previously executed a
Promissory Note payable to Bank, which Promissory Note includes the
original Promissory Note and all renewals, extensions and
modifications thereof, collectively “Promissory Note”,
and Promissory Note being more particularly identified by
description of the original note above; and Borrower(s) and Bank
agree that said Promissory Note be modified only to the limited
extent as is hereinafter set forth; that all other terms,
conditions, and covenants of said Promissory Note remain in full
force and effect, and that all other obligations and covenants of
Borrower(s), except as herein modified, shall remain in full force
and effect, and binding between Borrower(s) and Bank; and Whereas
Debtor(s)/Grantor(s), if different from Borrower(s), has agreed to
the terms of this modification; NOW THEREFORE, in mutual
consideration of the premises, the sum of Ten Dollars ($10) and
other good and valuable consideration, each to the other parties
paid, the parties hereto agree that said Promissory Note is amended
as hereinafter described:
* Borrower shall pay a prepayment fee as set
forth in the Prepayment Fee Addendum attached hereto.
INTEREST
RATE, PRINCIPAL AND INTEREST PAYMENT TERM MODIFICATIONS (To the
extent no change is made, existing terms
continue. Sections not completed are
deleted.)
Interest
shall accrue from the date hereof on the unpaid principal balance
outstanding from time to time at the:
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Fixed Rate of
________% per annum.
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Variable rate
of the Bank’s Prime Rate plus ____% per annum to be adjusted
__________________as the Bank’s Prime Rate
Changes.
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As of the
Modification Date, any fixed, floating, or average maximum rate and
fixed minimum rate in effect by virtue of the Promissory Note are
hereby deleted. If checked here
*
, the interest rate will not exceed
a(n) * fixed * average maximum rate
of _________% or a * floating maximum rate of the greater of
______% or the Bank’s Prime Rate; and the interest rate will
not decrease below a fixed minimum rate of _____%. If an
average maximum rate is specified, a determination of any required
reimbursement of interest by Bank will be made:
*
when the Note is repaid in fully by Borrower
*
annually beginning on
__________________.
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x
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THE ADJUSTED
LIBOR RATE AS DEFINED IN THE ATTACHED ADDENDUM TO PROMISSORY
NOTE.
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Principal
and interest are payable as follows:
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Principal (plus
any accrued interest not otherwise scheduled
herein
} is
due in full at maturity on JUNE 30, 2013.
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Principal plus
accrued interest
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Payable in consecutive _____ installments of
*
Principal commencing
on ________________
*
Principal and interest
}
and continuing on the same day of each calendar
period thereafter, in ____ equal payments of $______, with one
final payment of all remaining principal and accrued interest due
on _____________.
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ChoiceLine
Payment Option: 2% of outstanding balance is payable
monthly commencing on ____________ and continuing on the same day
of each month thereafter, with one final payment of all remaining
principal and accrued interest due on
_______________________
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x
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Accrued
interest is payable MONTHLY commencing
on JULY 31, 2011 and continuing on the same day of each
calendar period thereafter, with one final payment of all remaining
interest due on JUNE 30, 2013.
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Bank reserves
the right in its sole discretion to adjust the fixed payment due
hereunder _______ on ________ and continuing on the same day of
each calendar period thereafter, in order to maintain an
amortization period of no more than ______ months from the date of
the initial principal payment due hereunder. Borrower
understands the payment may increase if interest rates
increase.
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At the
Borrower’s request, the Bank has agreed to readvance the
principal amount of $____________. The outstanding
principal balance under the Promissory Note prior to the readvance
is $________________, making the total outstanding principal
balance now due hereunder to be $_____________ (“Modification
Amount”).
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______________________________________________________________________________________________________________
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______________________________________________________________________________________________________________
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Borrower hereby
authorizes Bank to automatically draft from its demand deposit or
savings account(s) with Bank or other bank, any payment(s) due on
the date(s) due. Borrower shall provide appropriate
account number(s) for account(s) at Bank or other bank.
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The following
scheduled payment(s) is (are) deferred:
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} payment(s)
due on _________________________
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is (are) hereby
deferred. Payments will resume on
___________________________ according to the schedule contained
herein or to the existing schedule (if no other changes are made
herein).
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Page 1 of 4
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The Borrower(s)
promises to pay Bank, or order, a late fee in the amount of five
percent (5%) of any installment past due for ten (10) or more
days. Where any installment payment is past due for ten
(10) or more days, subsequent payments shall first be applied to
the past due balance. In addition, the undersigned shall
pay to Bank a returned payment fee if the undersigned or any other
obligor hereon makes any payment at any time by check or other
instrument, or by any electronic means, which is returned to Bank
because of nonpayment due to nonsufficient funds.
COLLATERAL: *
The Promissory Note, as modified, and the
performance of the terms of any agreement or instrument relating
to, evidencing, or securing the Promissory Note, as modified, shall
be additionally secured by collateral hereinafter described, a new
security instrument shall be executed by Borrower(s), and/or
Debtor(s)/Grantor(s), and all other steps necessary to perfect or
record the Bank’s lien with priority acceptable to Bank shall
be taken. In addition to Bank’s right of off-set
and to any liens and security interests granted to Bank in the
Agreements, the undersigned hereby grants to Bank a security
interest in all of its depository accounts with and investment
property held by Bank, which shall serve as collateral for the
indebtedness and obligations evidenced by the Promissory Note, as
modified.
Deed(s) of
Trust / Mortgage(s) granted in favor of Bank as beneficiary /
mortgagee:
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dated
___________________ in the maximum principal amount of
$_______________________________________________________
granted by
__________________________________________________________________________________
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dated
___________________ in the maximum principal amount of
$________________________________________________________
granted by
__________________________________________________________________________________
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Security
Agreement(s) granting a security interest to Bank:
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dated
__________________ given by
____________________________________________________________________________
___________________________________________________________________________________________
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dated
__________________ given by
____________________________________________________________________________
___________________________________________________________________________________________
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Securities
Account Pledge and Security Agreement dated
__________________________________________________,
executed by
_________________________________________________________________________________
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Control
Agreement(s) dated ___________________, covering
*
Deposit
Account(s)
*
Investment Property
*
Letter of Credit
Rights
*
Electronic Chattel Paper
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Assignment of
Certificate of Deposit, Security Agreement, and Power of Attorney
(for Certificated Certificates of Deposit) dated
________________________________________________,
executed by
__________________________________________________
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Pledge and
Security Agreement for Publicly Traded Certificated Securities
dated _________________________________________,
executed by
____________________________________________________________________
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Assignment of
Life Insurance Policy as Collateral dated
_______________________________________________________________,
executed by
_____________________________________________________________________
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x
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AMENDMENT TO
Loan Agreement dated 6/30/2011,executed by Borrower and
*
Guarantor(s)
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______________________________________________________________________________________________________________
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______________________________________________________________________________________________________________
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The collateral
hereinafter described shall be and hereby is deleted as security
interest for payment of the Promissory Note.
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______________________________________________________________________________________________________________
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______________________________________________________________________________________________________________
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OTHER: ______________________________________________________________________________________________________
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If the
Promissory Note being modified by this Agreement is signed by more
than one person or entity, the modified Promissory Note shall be
the joint and several obligation of all signers and the property
and liability of each and all of them. It is expressly
understood and agreed that this Agreement is a modification only
and not a novation. The original obligation of the
Borrower(s) evidenced by the Promissory Note is not extinguished
hereby. It is agreed that except for the modification(s)
contained herein, the Promissory Note, and any other Loan Documents
or Agreements evidencing, securing or relating to the Promissory
Note and all singular terms and conditions thereof, shall be and
remain in full force and effect. This Agreement shall
not release or affect the liability of any co-makers, obligors,
endorsers or guarantors of said Promissory
Note. Borrower and Debtor(s)/Grantor(s), if any, jointly
and severally consent to the terms of this Agreement, waive any
objection thereto, affirm any and all obligations to Bank and
certify that there are no defenses or offsets against said
obligations or the Bank, including without limitation the
Promissory Note. Bank expressly reserves all rights as
to any party with right of recourse on the Promissory
Note.
In the event
periodic accruals of interest shall exceed any periodic fixed
payment amount described above, the fixed payment amount shall be
immediately increased or supplemental interest payments required on
the same periodic basis as specified above (increased fixed
payments or supplemental payments to be determined in the
Bank’s sole discretion), in such amounts and at such times as
shall be necessary to pay all accruals of interest for the period
and all accruals of unpaid interest from previous
periods. Such adjustments to the fixed payment amount or
supplemental payments shall remain in effect for so long as any
interest accruals shall exceed the original fixed payment amount
and shall be further adjusted upward or downward to reflect changes
in any variable interest rate based on an index such as the
Bank’s Prime Rate; provided that unless elected otherwise
above, the fixed payment amount shall not be reduced below the
original fixed payment amount. However, Bank shall have
the right, in its sole discretion, to lower the fixed payment
amount below the original payment
amount. Notwithstanding any other provision contained in
this agreement, in no event shall the provisions of this paragraph
be applicable to any Promissory Note which requires disclosures
pursuant to the Consumer Protection Act (Truth-in-Lending Act, 15
USC § 1601, et seq., as implemented by Regulation
Z.
Borrower agrees
that the only interest charge is the interest actually stated in
the Promissory Note, as modified hereby, and that any loan or
origination fee shall be deemed charges rather than interest, which
charges are fully earned and non-refundable. It is
further agreed that any late charges are not a charge for the use
of money but are imposed to compensate Bank for some of the
administrative services, costs and losses associated with any
delinquency or default under the Promissory Note, and said charges
shall be fully earned and non-refundable when
accrued. All other charges imposed by Bank upon Borrower
in connection with the Promissory Note and the loan including,
without limitation, any commitment fees, loan fees, facility fees,
origination fees, discount points, default and late charges,
prepayment fees, statutory attorneys' fees and reimbursements for
costs and expenses paid by Bank to third parties or for damages
incurred by Bank are and shall be deemed to be charges made to
compensate Bank for underwriting and administrative services and
costs, other services, and costs or losses incurred and to be
incurred by Bank in connection with the Promissory Note and the
loan and shall under no circumstances be deemed to be charges for
the use of money. All such charges shall be fully earned
and non-refundable when due.
The Bank may,
at its option, charge any fees for the modification, renewal,
extension, or amendment of any of the terms of the Promissory Note
as permitted by applicable law.
In the words
"Prime Rate", "Bank Prime Rate", "BB&T Prime Rate", "Bank's
Prime Rate" or "BB&T's Prime Rate" are used in this Agreement,
they shall refer to the rate announced by the Bank from time to
time as its Prime Rate. The Bank makes loans both above
and below the Prime Rate and uses indexes other than the Prime
Rate. Prime Rate is the name given a rate index used by
the Bank and does not in itself constitute a representation of any
preferred rate or treatment.
Unless
otherwise provided herein, it is expressly understood and agreed by
and between Borrower(s), Debtor(s)/Grantor(s) and Bank that any and
all collateral (including but not limited to real property,
personal property, fixtures, inventory, accounts, instruments,
general intangibles, documents, chattel paper, and equipment) given
as security to insure faithful performance by
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