SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
SAVANNAH ELECTRIC AND POWER COMPANY
600 East Bay Street
Savannah, Georgia 31401
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent
of each applicant or declarant)
Kirby R. Willis
Vice President, Treasurer and Chief Financial Officer
Savannah Electric and Power Company
600 East Bay Street
Savannah, Georgia 31401
(Name and address of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
W. L. Westbrook, Financial Vice President
The Southern Company
64 Perimeter Center East
Atlanta, Georgia 30346
E. Pomeroy Williams, Esq. John D. McLanahan, Esq.
Bouhan, Williams & Levy LLP Troutman Sanders LLP
447 Bull Street 600 Peachtree Street, N.E.
Savannah, Georgia 31401 Suite 5200
Atlanta, Georgia 30308-2216
<PAGE>
INFORMATION REQUIRED
Item 1. Description of Proposed Transactions.
Savannah Electric and Power Company ("Savannah") is an
electric utility company and a wholly-owned subsidiary of The
Southern Company, a registered holding company under the Public
Utility Holding Company Act of 1935, as amended (the "Act").
Savannah is a corporation organized and existing under the laws
of the State of Georgia.
The transactions proposed in this proceeding relate to the
construction by Savannah of a project (the "Project") consisting
of mooring dolphins, pilings and a coal conveying system for
off-loading coal from barges or ships, including a dock,
foundations and related facilities, for purposes of delivering
coal to Savannah's Plant Kraft (Port Wentworth) in Chatham
County, Georgia. The Project will make available new sources of
coal for Plant Kraft and, therefore, is expected to result in
lower fuel costs for the ultimate benefit of Savannah's rate-
payers.
It is proposed that, in order to provide funds for payment
of the costs of acquiring, constructing, installing and equipping
the Project, the Savannah Economic Development Authority, a
public body corporate and politic and an instrumentality of the
State of Georgia (the "Authority"), will issue and sell its
industrial development revenue bonds (the "Revenue Bonds") in an
aggregate principal amount not exceeding $7,000,000. The Revenue
Bonds may be so issued and sold, and the transactions relating
thereto as described herein may be consummated, at any time not
later than March 31, 1996.
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The Revenue Bonds will be issued under and secured by a
Trust Indenture, substantially in the form of Exhibit B-2 hereto
(the "Trust Indenture"), between the Authority and a banking
institution acting as trustee (the "Trustee") for the owners from
time to time of the Revenue Bonds. The Revenue Bonds, which are
anticipated to be fully subject to taxation under applicable
federal and state tax laws, will mature (subject to prior
redemption) on a date not more than 30 years after the date on
which they are initially issued.
The proceeds from the Authority's sale of the Revenue Bonds
will be deposited with the Trustee and will be applied by
Savannah to payment of the Cost of Construction (as defined in
the Agreement hereinafter referred to) of the Project.
It is proposed that the Revenue Bonds initially will bear
interest at an interest rate determined weekly until converted at
the direction of Savannah to a different interest rate mode
permitted under the Trust Indenture. Other permitted modes will
include interest periods of one month's, three months' and six
months' duration. Savannah also may convert the interest rate on
the Revenue Bonds to a fixed rate to their stated maturity.
Except as otherwise provided in the Trust Indenture, the interest
rate in each such mode will be determined by the Remarketing
Agent appointed under the Trust Indenture as the minimum rate of
interest necessary, in the judgment of the Remarketing Agent, to
enable the Remarketing Agent to sell the Revenue Bonds at a price
equal to the principal amount thereof plus accrued interest, if
any, thereon.
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It is currently contemplated that SunTrust Bank, Atlanta
(which bank is also expected to serve as placement agent for the
Revenue Bonds as hereinafter described) will initially serve as
Remarketing Agent. The Remarketing Agent for the Revenue Bonds
may be removed or may resign as provided in the Trust Indenture.
Savannah expects to review closely the determinations made by the
Remarketing Agent pursuant to the Trust Indenture and to measure
such determinations against, among other things, any available
published information concerning comparable securities.
It is proposed that Savannah will agree to pay the
Remarketing Agent an annual fee not exceeding 1/4 of 1% of the
principal amount of the Revenue Bonds outstanding.
The interest rate mode for the Revenue Bonds will be subject
to conversion from time to time at the option of Savannah as
provided in the Trust Indenture.
The Trust Indenture provides that the Revenue Bonds will be
subject to purchase on the demand of the owners thereof and to
mandatory purchase upon the occurrence of certain events, as set
forth in the Trust Indenture. Such mandatory purchase events
include conversion of the interest rate mode to a fixed rate of
interest to the stated maturity of the Revenue Bonds. The Trust
Indenture contemplates that the Remarketing Agent generally will
use its best efforts to sell any Revenue Bonds required to be
purchased.
The Revenue Bonds will be subject to redemption at the
direction of Savannah as provided in the Trust Indenture. It is
contemplated that the Revenue Bonds may be entitled to the
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benefit of a mandatory redemption sinking fund calculated to
retire a portion of the initial aggregate principal amount of the
issue prior to maturity.
In connection with the issuance of the Revenue Bonds,
Savannah proposes to grant the Authority an estate for years in
the real property on which the Project is being constructed for a
term coinciding with the term of the Revenue Bonds. Savannah
additionally proposes to enter into a Lease Agreement with the
Authority substantially in the form of Exhibit B-1 hereto (the
"Agreement"). The Agreement will provide for the Authority's
lease of the Project to Savannah and Savannah's lease of the
Project from the Authority. Savannah will agree pursuant to the
Agreement to pay to the Trustee, as assignee of the Authority,
from time to time as the amount owed thereunder in respect of the
lease of the Project, amounts which, and at or before times
which, shall correspond to the payments with respect to the
principal of and premium, if any, and interest on the Revenue
Bonds whenever and in whatever manner the same shall become due,
whether at stated maturity, upon redemption or declaration or
otherwise, and the purchase price of Revenue Bonds required to be
purchased under the Trust Indenture. The Agreement will also
obligate Savannah to pay the fees and charges of the Trustee and
all costs of operating, maintaining and repairing the Project.
The Agreement will provide that, upon its expiration or
termination, all right, title and interest in and to the Project
will revert to Savannah.
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Savannah further proposes to enter into arrangements with
the Authority and SunTrust Bank, Atlanta (or other entity or
entities) acting as placement agent with respect to the issuance
and sale by the Authority of the Revenue Bonds. Pursuant to such
arrangements, the placement agent is to agree to use its best
efforts to arrange for the sale of the Revenue Bonds at a
purchase price of 100% of the principal amount thereof, and
Savannah will pay the placement agent's fee for its services in
an amount not exceeding 1% of the principal amount of the Revenue
Bonds.
Item 2. Fees, Commissions and Expenses.
The fees and expenses to be paid or incurred, directly or
indirectly, in connection with the proposed transactions will be
filed by amendment.
Item 3. Applicable Statutory Provisions.
It is considered that certain of the proposed transactions
described in Item 1 hereof may be subject to Sections 9(a) and 10
of the Act. The proposed transactions will be carried out in
accordance with the procedures specified in Rule 23 under the Act
and pursuant to an order or orders of the Commission in respect
thereto.
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Item 4. Regulatory Approval.
The proposed transactions are not subject to the
jurisdiction of any state commission. The proposed transactions
are not subject to the jurisdiction of any federal commission
other than the Securities and Exchange Commission.
Item 5. Procedure.
Savannah requests that the Commission's order in this
proceeding be issued as soon as the rules allow, and that there
be no thirty-day waiting period between the issuance of the
Commission's order and the date on which it is to become
effective. Savannah hereby waives a recommended decision by a
hearing officer or other responsible officer of the Commission
and hereby consents that the Division of Investment Management
may assist in the preparation of the Commission's decision and/or
order herein, unless such Division opposes the matters covered
hereby.
Item 6. Exhibits and Financial Statements.
(a) Exhibits
B-1 -- Form of Lease Agreement between the Authority
and Savannah.
B-2 -- Form of Trust Indenture between the Authority
and the Trustee.
F -- Opinion of Bouhan, Williams & Levy LLP. (To
be filed by amendment)
G -- Form of Notice
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(b) Financial Statements
Quarterly Report on Form 10-Q of Savannah for the
quarter ended September 30, 1995. (Designated herein to File No.
1-5072.)
Item 7. Information as to Environmental Effects.
(a) In view of the nature of the proposed transactions as
described in Item 1 hereof, the Commission's action in this
matter will not constitute any major federal action significantly
affecting the quality of the human environment within the meaning
of the National Environmental Policy Act.
(b) No other federal agency has prepared or is preparing an
environmental impact statement with regard to the proposed
transactions.
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SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
statement to be signed on its behalf by the undersigned thereunto
duly authorized.
Dated: December 6, 1995 SAVANNAH ELECTRIC AND POWER
COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary and
Assistant Treasurer
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<PAGE>
Exhibit B-1
DRAFT
10/09/1995
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
and
SAVANNAH ELECTRIC AND POWER COMPANY
_______________
LEASE AGREEMENT
_______________
Dated as of January 1, 1996
Relating to Savannah Economic Development Authority
Industrial Development Revenue Bonds
(Savannah Electric and Power Company Project)
<PAGE>
LEASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Lease Agreement)
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project . 3
SECTION 2.2. Issuance of First Series 1996 Bonds;
Additional Bonds . . . . . . . . . . . . . . . . . 4
SECTION 2.3. Establishment of Completion Date. . . . . . 4
SECTION 2.4. Insufficiency of Construction Fund . . . 5
ARTICLE III
LEASE OF THE PROJECT; PROVISIONS FOR PAYMENT
SECTION 3.1. Lease of the Project . . . . . . . . . . . 5
SECTION 3.2. Lease Payments and Other Amounts Payable . 5
SECTION 3.3. Obligation of the Company Unconditional . . 6
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.4. Assignment and Pledge of Payments and
Rights Under the Agreement . . . . . . . . . . . . 6
SECTION 3.5. Letter of Credit . . . . . . . . . . . . . 7
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project . . . . . . . . . . . . . . 7
SECTION 4.2. Indemnity Against Claims . . . . . . . . . 8
SECTION 4.3. The Company to Maintain Its Corporate
Existence; Conditions Under Which Exceptions
Permitted . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.4. Annual Statement . . . . . . . . . . . . . 8
SECTION 4.5. Further Assurances and Corrective
Instruments . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.6. Maintenance of Project by Company . . . . 9
SECTION 4.7. Redemption or Purchase of Bonds . . . . . . 9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . 10
SECTION 5.2. Remedies on Default . . . . . . . . . . . . 11
SECTION 5.3. Agreement to Pay Attorneys' Fees and
Expenses . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.4. No Additional Waiver Implied by One Waiver 12
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement . . . . . . . . . . 12
SECTION 6.2. Notices . . . . . . . . . . . . . . . . . . 13
SECTION 6.3. Binding Effect . . . . . . . . . . . . . . 13
SECTION 6.4. Severability . . . . . . . . . . . . . . . 13
SECTION 6.5. Amounts Remaining in the Bond Fund . . . . 13
SECTION 6.6. Amendments . . . . . . . . . . . . . . . . 13
SECTION 6.7. Execution in Counterparts . . . . . . . . . 13
SECTION 6.8. Applicable Law . . . . . . . . . . . . . . 13
SECTION 6.9. Captions . . . . . . . . . . . . . . . . . 13
SECTION 6.10. Other Financing . . . . . . . . . . . . . 14
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . 15
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<PAGE>
LEASE AGREEMENT dated as of January 1, 1996 between the
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate
and politic and an instrumentality of the State of Georgia duly
organized and existing under the Constitution and laws of the
State of Georgia (the "Issuer"), and SAVANNAH ELECTRIC AND POWER
COMPANY, a corporation organized and existing under the laws of
the State of Georgia (the "Company"), evidencing the agreement of
the parties hereto.
In consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as
follows (provided that in the performance of the agreements of the
Issuer herein contained, any obligation it may thereby incur for
the payment of money shall not be a general debt, liability or
obligation of the Issuer, or of the State of Georgia or any
political subdivision thereof but shall be payable solely out of
the revenues and proceeds derived from this Agreement and the sale
of the Bonds referred to herein):
ARTICLE I
DEFINITIONS
"Additional Bonds", "Available Moneys", "Bank", "Bondholder",
"Bonds", "Bond Fund", "Government Obligations", "Interest Payment
Date", "Interest Period", "Letter of Credit", "Purchase Price",
"Rating Agency", "Substitute Letter of Credit", "Tender Agent" and
"Trustee" have the same meanings given and assigned to such words
in Article I of the Indenture (as hereinafter defined).
"Agreement" means this Lease Agreement and any amendments and
supplements hereto.
"Completion Date" means the date of completion of the
acquisition, construction, installation and equipping of the
Project (hereinafter defined) as such date shall be certified as
provided in Section 2.3 hereof.
"Cost of Construction" with respect to the Project means the
following:
(a) obligations of the Issuer or the Company incurred for
labor and materials (including reimbursements payable to the
Issuer or the Company and payments on contracts in the name
of the Issuer or the Company) in connection with the
acquisition, construction, installation and equipping of the
Project;
(b) the cost of contract bonds and of insurance of all kinds
that may be required or necessary during the course of
construction of the Project;
<PAGE>
(c) all costs of engineering services, including the costs
of the Issuer or the Company for test borings, surveys,
estimates, plans and specifications and preliminary
investigation therefor, and for supervising construction, as
well as for the performance of all other duties required by
or consequent upon the proper construction of the Project;
(d) overheads of the Issuer or the Company, to the extent
not included in subparagraph (c) above, allocable to the
Project by the Issuer or the Company in accordance with the
Uniform System of Accounts prescribed for Public Utilities
and Licensees by the Federal Energy Regulatory Commission;
(e) interest to accrue in respect of the Bonds to the
Completion Date, and all expenses incurred in connection with
the issuance of the Bonds, including without limitation
compensation and expenses of the Trustee, legal expenses and
fees, costs of printing and engraving, recording and filing
fees, compensation of the underwriters or placement agents
and rating agency fees;
(f) all other costs and allowances which the Issuer or the
Company may properly pay or accrue for the acquisition,
construction, installation or equipping of the Project or the
lease thereof to the Company; and
(g) any sums required to reimburse the Issuer or the Company
for advances made by either of them for any of the above
items (including interest on any such advances) or for any
other costs incurred or for work done by either of them which
are properly chargeable to the Project.
"Event of Default" means any of the occurrences enumerated
in Section 5.1 of this Agreement.
"First Series 1996 Bonds" means the bonds authorized to be
issued under Section 2.02 of the Indenture.
"Indenture" means the Trust Indenture dated as of January 1,
1996, relating to Industrial Development Revenue Bonds, between
the Issuer and _______________________________________________, as
Trustee, pursuant to which the Bonds are authorized to be issued,
and including any indenture supplemental thereto.
"Plans" means the plans and specifications prepared by or on
behalf of the Company for the Project, as the same may be revised
from time to time by the Company in accordance with the last
paragraph of Section 2.1 hereof.
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"Project" means the coal conveying facilities described in
the Plans and, as designed on the date hereof, described generally
in Exhibit A hereto.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The
Issuer agrees that:
(a) It will cause the Project to be acquired,
constructed, installed and equipped as herein provided
substantially in accordance with the Plans.
(b) It will make, execute, acknowledge and deliver any
contracts, orders, receipts, writings and instructions with
any other persons, firms or corporations and in general do
all things which may be requisite or proper, all for
acquiring, constructing, installing, equipping and completing
the Project substantially in accordance with the Plans.
(c) It will ask, demand, sue for, levy, recover and
receive such sums of money, debts or other rights whatsoever
to which it may be entitled under any contract, order,
receipt, guarantee, warranty, writing or instruction in
connection with any of the foregoing, and it will enforce the
provisions of any contract, agreement, obligation, bond or
other security. Any amounts received in connection with the
foregoing, after deduction of reasonable expenses incurred in
such recovery, if received prior to the Completion Date,
shall be paid into the Construction Fund and, if received on
or after the Completion Date, shall be paid into the Bond
Fund.
The Issuer hereby makes, constitutes and appoints the Company
as its true, lawful and exclusive agent for the acquisition,
construction, installation and equipping of the Project, and the
Company hereby accepts such agency, to act and do all things on
behalf of the Issuer, to perform all acts and agreements of the
Issuer hereinbefore provided in this Section 2.1 and to bring any
actions or proceedings against any person which the Issuer might
bring with respect thereto as the Company shall deem proper. The
Issuer hereby ratifies and confirms all actions of, and assumes
and adopts all such contracts entered into by or on behalf of, the
Company with respect to the Project prior to the effective date
hereof. This appointment of the Company to act as agent as
aforesaid and all authority hereby conferred are granted and
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conferred irrevocably and shall not be terminated by any act of
the Issuer or the Company. The Issuer will, upon the request of
the Company, assign to the Company all warranties and guarantees
of all contractors, subcontractors, suppliers, architects and
engineers for the furnishing of labor, materials or equipment or
supervision or design in connection with the Project and any
rights or causes of action arising from or against any of the
foregoing.
The Issuer and the Company agree to use their best efforts to
cause the acquisition, construction, installation and equipping of
the Project to be completed substantially in accordance with the
Plans with reasonable dispatch, delays incident to "force majeure"
(as defined in Section 5.1 hereof) only excepted.
The Issuer and the Company agree that the Company may at any
time or from time to time supplement or amend the Plans (including
additions thereto or omissions therefrom).
SECTION 2.2. Issuance of First Series 1996 Bonds; Additional
Bonds. In order to provide funds for payment of the Cost of
Construction, the Issuer agrees that it will initially issue and
deliver First Series 1996 Bonds to the purchasers thereof at a
price to be approved in advance by the Company and apply and
deposit the proceeds thereof in accordance with the terms of the
Indenture. The Indenture shall be satisfactory in form and
substance to the Company and shall provide the manner in which,
and the purposes for which, proceeds of Bonds may be used and
invested.
The Issuer has authorized and directed the Trustee to
disburse moneys from the Construction Fund in respect of the Cost
of Construction in accordance with Section 6.12 of the Indenture.
If no Event of Default shall have occurred and be continuing,
the Issuer will authorize the sale from time to time, to the
extent permitted by law, of Additional Bonds, in amounts specified
by the Company and upon the terms and conditions provided in the
Indenture, for any purpose permitted by the Indenture. The Issuer
will deposit the proceeds of any such Additional Bonds with the
Trustee in accordance with the terms of the Indenture.
SECTION 2.3. Establishment of Completion Date. The
Completion Date shall be evidenced to the Trustee by a certificate
of the Company: (i) stating that the Project has been completed
substantially in accordance with the Plans, and (ii) stating that,
except for amounts retained by the Trustee at the Company's
direction for any Cost of Construction not then due and payable or
which is in dispute, the entire Cost of Construction has been
paid. Notwithstanding the foregoing, such certificate shall state
that it is given without prejudice to any rights against third
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parties which exist at the date of such certificate or which may
subsequently come into being.
SECTION 2.4. Insufficiency of Construction Fund. The
Issuer does not make any warranty, either express or implied, that
the amounts in the Construction Fund and available for payment of
the Cost of Construction will be sufficient to pay all of the Cost
of Construction. The Company agrees that, if after exhaustion of
the amounts in the Construction Fund, it should pay any portion of
the Cost of Construction, it shall not be entitled to any
diminution of the amounts payable as provided in Section 3.2
hereof.
ARTICLE III
LEASE OF THE PROJECT; PROVISIONS FOR PAYMENT
SECTION 3.1. Lease of the Project. The Issuer, as lessor
hereunder, agrees to and does hereby lease to the Company, as
lessee hereunder, and the Company agrees to and does hereby lease
from the Issuer, subject to the provisions of this Agreement, the
Project, together with all improvements, easements, accretions and
appurtenances thereto belonging or in any wise appertaining.
SECTION 3.2. Lease Payments and Other Amounts Payable. The
Company hereby agrees to pay to the Trustee, as assignee of the
Issuer, in funds which will be immediately available on the day
payment is due, from time to time as the amount owed hereunder in
respect of the lease of the Project, amounts which, and at or
before times which, shall correspond to the payments with respect
to the principal of and premium, if any, and interest on the Bonds
whenever and in whatever manner the same shall become due, whether
at stated maturity, upon redemption or declaration or otherwise,
and the Purchase Price of Bonds required to be purchased under the
Indenture. If, (i) at the date any payment on the Bonds is due,
there are any Available Moneys in the Bond Fund which are not
being held for the payment of Bonds due and payable but which have
not been presented for payment pursuant to Section 6.06 of the
Indenture, or (ii) on any date on which Bonds are required to be
purchased pursuant to Article IV of the Indenture, there are
Available Moneys held for the payment of the Purchase Price which
are not being held for the payment of Bonds which have not been
presented for payment, then, in each case, such moneys shall be
credited against the payment then due hereunder, first in respect
of interest and then, to the extent of remaining moneys, in
respect of principal (it being understood and agreed that the
obligation of the Company to make any payment hereunder shall be
satisfied and discharged to the extent of the corresponding
payment made to the Trustee by the Bank under any Letter of
Credit).
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The Company will also pay: (i) the fees, charges and
reasonable expenses of the Trustee, the Tender Agent and any
paying agents under the Indenture, such fees, charges and
reasonable expenses to be paid directly to the Trustee, the Tender
Agent or paying agents for their respective accounts as and when
such fees, charges and reasonable expenses become due and payable,
(ii) any expenses and costs incurred or to be incurred by virtue
of the issuance of Additional Bonds and (iii) any expenses in
connection with any redemption of the Bonds.
SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make payments as provided in this
Agreement and to perform and observe the other agreements on its
part contained herein shall be absolute and unconditional
notwithstanding any change in the laws of the United States of
America or of the State of Georgia or any political subdivision of
either thereof or any failure of the Issuer to perform and observe
any agreement, whether express or implied, or any duty, liability
or obligation arising out of or connected with this Agreement.
Nothing contained in this Section 3.3 shall be construed to
release the Issuer from the performance of any of the agreements
on its part herein contained; and, in the event the Issuer should
fail to perform any such agreement on its part, the Company may
institute such action against the Issuer as the Company may deem
necessary to compel performance so long as such action shall not
violate the agreements on the part of the Company contained in the
preceding sentence, but in no event shall the Company be entitled
to any diminution of the amounts payable under Section 3.2 hereof.
The Company may, however, at its own cost and expense and in its
own name or in the name of the Issuer, prosecute or defend any
action or proceeding or take any other action involving third
persons which the Company deems reasonably necessary in order to
secure or protect its right of possession, occupancy and use of
the Project hereunder, and in such event the Issuer hereby agrees
to cooperate fully with the Company and to take all action
necessary to effect the substitution of the Company for the Issuer
in any such action or proceeding if the Company shall so request.
SECTION 3.4. Assignment and Pledge of Payments and Rights
Under the Agreement. The Issuer shall assign to the Trustee as
security under the Indenture all rights, title and interests of
the Issuer in and to this Agreement and all moneys receivable
hereunder (except for payments under Sections 4.2 and 5.3 hereof).
The Company assents to such assignment and hereby agrees that, as
to the Trustee, its obligations to make such payments shall be
absolute and shall not be subject to any defense or any right of
set-off, counterclaim or recoupment arising out of any breach by
the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Company by the Issuer or the
Trustee.
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SECTION 3.5. Letter of Credit. (a) No Letter of Credit will
be provided in connection with the initial issuance of the First
Series 1996 Bonds. Subsequent to the initial issuance of the
First Series 1996 Bonds, the Company may, in its sole discretion,
furnish a Letter of Credit to provide payment of principal of,
interest on and Purchase Price of the First Series 1996 Bonds. If
the Company is providing the Letter of Credit to provide payment
of principal of, interest on and Purchase Price of the First
Series 1996 Bonds during any Interest Period with a duration of
one week, the Company may deliver the Letter of Credit at any time
and the Letter of Credit may be effective on any date and may
terminate on any date which is at least six (6) days after an
Interest Payment Date. If the Company is providing the Letter of
Credit to provide for payments during any Interest Period with a
duration greater than one week, the Company shall deliver the
Letter of Credit to the Trustee at least ten (10) days before the
beginning of the Interest Period and such Letter of Credit shall
be effective as of the beginning of such Interest Period and shall
terminate at least six (6) days after the end of such Interest
Period. As a condition to the delivery to the Trustee of a Letter
of Credit, the Company shall furnish to the Trustee, on or before
the date of such delivery, the same written evidence and opinions
required pursuant to clauses (i), (ii) and (iii) of Section 3.6(b)
hereof in connection with the delivery of a Substitute Letter of
Credit.
(b) The Company may provide for the delivery to the Trustee
of a Substitute Letter of Credit. Any Substitute Letter of Credit
shall be delivered to the Trustee not less than thirty (30) days
prior to the expiration of the Letter of Credit it is being issued
to replace; provided, however, that on or before the date of such
delivery of a Substitute Letter of Credit to the Trustee, the
Company shall furnish to the Trustee (i) written evidence from
each Rating Agency by which the Bonds are then rated, to the
effect that such Rating Agency has reviewed the proposed
Substitute Letter of Credit and that the substitution of the
proposed Substitute Letter of Credit will not, by itself, result
in the reduction of the then applicable rating(s) of the Bonds;
and (ii) an opinion of counsel to the issuer of the Substitute
Letter of Credit to the effect that the Substitute Letter of
Credit will be valid, binding and enforceable in accordance with
its terms and is exempt from the registration requirements of the
Securities Act of 1933, as amended.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer does hereby
covenant and agree that it will not take any action, other than
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pursuant to the exercise of its rights under Section 5.2 of this
Agreement, to prevent the Company from having quiet and peaceable
possession and enjoyment of the Project during the term of this
Agreement and will, at the request of the Company and at the
Company's cost, cooperate with the Company in order that the
Company may have quiet and peaceable possession and enjoyment of
the Project. The Issuer hereby acknowledges that the Project will
not constitute any part of the security for the Bonds.
SECTION 4.2. Indemnity Against Claims. The Company will pay
and discharge and will indemnify and hold harmless the Issuer and
its officers, employees and agents from (a) any lien or charge
upon payments by the Company to the Issuer hereunder, (b) any
taxes, assessments, impositions and other charges upon payments by
the Company to the Issuer hereunder and (c) any and all liability,
damages, costs and expenses arising out of or resulting from the
transactions contemplated by this Agreement and the Indenture,
including the reasonable fees and expenses of counsel. If any such
lien or charge is sought to be imposed upon payments, or any such
taxes, assessments, impositions or other charges are sought to be
imposed, or any such liability, damages, costs and expenses are
sought to be imposed, the Issuer will give prompt notice to the
Company, and the Company shall have the sole right and duty to
assume, and will assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees
that during the term of this Agreement it will maintain its
corporate existence and qualification to do business in Georgia,
will not dissolve or otherwise dispose of all or substantially all
of its assets and will not consolidate with or merge into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, that the Company may,
without violating the agreements contained in this Section 4.3,
consolidate with or merge into another domestic corporation (i.e.,
a corporation incorporated and existing under the laws of one of
the states of the United States of America or under the laws of
the United States of America) or permit one or more other
corporations to consolidate with or merge into it, or sell or
otherwise transfer to another domestic corporation all or
substantially all of its assets as an entirety and thereafter
dissolve, provided that, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, the surviving, resulting or transferee corporation assumes,
accepts and agrees in writing to pay and perform all of the
obligations of the Company herein and is a Georgia corporation or
is qualified to do business in Georgia as a foreign corporation.
SECTION 4.4. Annual Statement. The Company agrees to have an
annual audit made by its regular independent public accountants
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<PAGE>
and within 180 days after the close of each fiscal year to furnish
the Trustee and any Bondholder who may so request a balance sheet
and statement of income and surplus showing the financial
condition of the Company and its consolidated subsidiaries, if
any, at the close of such fiscal year and the results of
operations of the Company and its consolidated subsidiaries, if
any, for such fiscal year, accompanied by a certificate or opinion
of said accountants. The requirements of this Section 4.4 may be
satisfied by the submission to the Trustee and each Bondholder who
may request such information of the Company's annual report to its
shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments.
The Issuer and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this
Agreement.
SECTION 4.6. Maintenance of Project by Company. The Company
agrees that during the term of this Agreement it will pay all
costs of operating, maintaining and repairing the Project;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project. In any instance where the Company determines that any
portion of the Project has become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary, the Company may remove
such portion of the Project and sell, trade-in, exchange or
otherwise dispose of such removed portion without any notice to or
responsibility or accountability to the Issuer, the Trustee or the
Bondholders therefor.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer
shall take all steps then necessary under the applicable
provisions of the Indenture for the redemption or purchase (other
than a purchase pursuant to Article IV of the Indenture) of Bonds
upon receipt, not less than ten days prior to the day on which the
Trustee is required to give notice (if any) thereof pursuant to
the Indenture, by the Issuer and the Trustee from the Company of a
written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase; and
(c) in the case of a redemption of Bonds, directions to
mail a notice of redemption.
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<PAGE>
In the case of a purchase of Bonds, the written notice to the
Trustee shall, if Available Moneys in the Bond Fund are
insufficient to purchase the principal amount of Bonds specified
in (a) above, be accompanied by a deposit into the Bond Fund of
Available Moneys or Government Obligations purchased with
Available Moneys sufficient, together with other Available Moneys
in the Bond Fund, to make the directed purchase of Bonds.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall
be an "Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the
amounts required to be paid pursuant to the first
paragraph of Section 3.2 of this Agreement or the
failure by the Company to pay within 30 days of the date
due any other amounts required to be paid pursuant to
this Agreement.
(b) Failure by the Company to observe and perform
any covenant, condition or agreement on its part to be
observed or performed hereunder, other than as referred
to in subsection (a) of this Section 5.1, for a period
of 60 days after written notice, specifying such failure
and requesting that it be remedied, is given to the
Company by the Issuer or the Trustee, unless the Issuer
and the Trustee shall agree in writing to an extension
of such period prior to its expiration; provided,
however, if the failure stated in the notice cannot be
corrected within the applicable period, the Issuer and
the Trustee will not unreasonably withhold their consent
to an extension of such period if corrective action is
instituted by the Company within the applicable period
and diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Company,
except as permitted by Section 4.3 hereof, or the
commencement by the Company of any case or proceeding
seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it as bankrupt or
insolvent or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition,
readjustment of its debts or any other relief under any
bankruptcy, insolvency, reorganization or other similar
law of the United States or any state, or adjudication
of the Company as bankrupt, or an assignment by the
Company for the benefit of its creditors, or the entry
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<PAGE>
by the Company into an agreement of composition with its
creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in
any proceeding for its reorganization instituted under
the provisions of Title 11 of the United States Code, as
amended, or under any similar statutory provision which
may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the
limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements herein
contained other than those set forth in Section 4.3 hereof, an
Event of Default shall not be deemed to have occurred during the
continuance of such inability. The term "force majeure" as used
herein shall mean the following: acts of God; strikes; lockouts or
other industrial disturbances; acts of public enemies; orders of
any kind of the government of the United States or of the State of
Georgia or any of their departments, agencies or officials or of
any civil or military authority; insurrections; riots; epidemics;
landslides; lightning; earthquakes; fire; hurricanes; tornadoes;
storms; floods; washouts; droughts; arrests; restraints of
government and people; civil disturbances; explosions; breakage or
accident to machinery, transmission lines, pipes or canals;
partial or entire failure of utilities; or any other cause or
event not reasonably within the control of the Company. The
Company agrees, however, to remedy to the extent practicable with
all reasonable dispatch the effects of any force majeure
preventing the Company from carrying out its agreements; provided
that the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the
Company, and the Company shall not be required to make settlement
of strikes, lockouts and other industrial disturbances by acceding
to the demands of the opposing party or parties when such course
is in the judgment of the Company unfavorable to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of
Default shall have occurred and be continuing, the Issuer may, in
addition to any other remedy now or hereafter existing at law, in
equity or by statute, take either or both of the following
remedial steps:
(a) By written notice to the Company, the Issuer (or the
Trustee on behalf of the Issuer) may declare all amounts
payable pursuant to the first paragraph of Section 3.2 of
this Agreement to be immediately due and payable, whereupon
the same shall become immediately due and payable;
(b) The Issuer (or the Trustee on behalf of the Issuer)
may take whatever action at law or in equity may appear
necessary or desirable to collect the amounts referred to in
(a) above then due and thereafter to become due, or to
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enforce performance and observance of any obligation,
agreement or covenant of the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section
5.2 shall be paid into the Bond Fund and applied in accordance
with the provisions of the Indenture or, if the Bonds have been
fully paid (or provision for payment thereof has been made in
accordance with the provisions of the Indenture) and the fees and
expenses of the Trustee and the paying agents and all other
amounts required to be paid under the Indenture shall have been
paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
this Agreement and the Issuer or the Trustee should employ
attorneys or incur other expenses for the collection of amounts
payable hereunder or the enforcement of performance or observance
of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay
to the Issuer or the Trustee, as the case may be, the reasonable
fees of such attorneys and such other reasonable expenses so
incurred by the Issuer and the Trustee.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In
the event any agreement contained in this Agreement should be
breached by either party and thereafter waived by the other party,
such waiver shall be limited to the particular breach so waived
and shall not be deemed to waive any other breach hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the outstanding Bonds shall have been fully paid or
provision made therefor in accordance with the provisions of the
Indenture, whichever shall first occur, and the fees and expenses
of the Trustee and any paying agents and all other amounts payable
by the Company under this Agreement shall have been paid.
Notwithstanding anything herein or in any other document or
instrument to the contrary, it is understood and agreed that upon
the expiration or termination of this Agreement all right, title
and interest in and to the Project, and all improvements,
easements, accretions and appurtenances thereto belonging or in
any wise appertaining, shall revert to, vest in and belong to the
Company and neither the Issuer nor the Trustee shall have any
right, title, interest, powers, rights or remedies with respect to
the Project hereunder or otherwise.
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<PAGE>
SECTION 6.2. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the Issuer, at
P. O. Box 128, Suite 101, 222 West Oglethorpe Avenue, Savannah,
Georgia 31402, Attention: Chairman; if to the Company, at 600 Bay
Street, East, Savannah, Georgia 31401, Attention: Vice President,
Treasurer and Chief Financial Officer, with copies to Southern
Company Services, Inc., 64 Perimeter Center East, Atlanta, Georgia
30346, Attention: Corporate Finance Department; and if to the
Trustee, at _________________________________________________,
Attention: Corporate Trust Department. A duplicate copy of each
notice, certificate or other communication given hereunder by
either the Issuer or the Company to the other shall also be given
to the Trustee. The Issuer, the Company and the Trustee may, by
notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Issuer, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
SECTION 6.5. Amounts Remaining in the Bond Fund. Any amounts
remaining in the Bond Fund upon termination of this Agreement
shall, to the extent provided by Section 6.08 of the Indenture,
belong to and be paid to the Company by the Trustee.
SECTION 6.6. Amendments. This Agreement may not be
effectively terminated except in accordance with the provisions
hereof and may not be effectively amended except by a written
agreement in accordance with Article XII of the Indenture and
signed by the parties hereto.
SECTION 6.7. Execution in Counterparts. This Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 6.8. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Georgia.
SECTION 6.9. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
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describe the scope or intent of any provisions or sections of this
Agreement.
SECTION 6.10. Other Financing. Notwithstanding anything in
this Agreement to the contrary, the Issuer and the Company may
hereafter enter into agreements to provide for the financing or
refinancing of costs of the Project or any portion thereof in lieu
of or in addition to the provisions herein for Additional Bonds.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
SAVANNAH ECONOMIC DEVELOPMENT
AUTHORITY
By:
President
ATTEST:
___________________________
Assistant Secretary
SAVANNAH ELECTRIC AND POWER
COMPANY
By:
Vice President, Treasurer
and Chief Financial Officer
ATTEST:
___________________________
Assistant Secretary
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<PAGE>
EXHIBIT A
DESCRIPTION OF PROJECT
The Project consists of mooring dolphins, pilings and a coal
conveying system for offloading coal from barges or ships,
including a dock and foundations, pumping, piping, structures,
electrical and mechanical equipment, controls and accessories
related and subordinate thereto, for purposes of delivering coal
to the Company's Plant Kraft (Port Wentworth) in Chatham County,
Georgia.
[hartland]:\71588\80364\LEASE2.AGR
<PAGE>
Exhibit B-2
DRAFT
10/09/95
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
to
__________________________,
Trustee
TRUST INDENTURE
Dated as of January 1, 1996
Relating to Savannah Economic Development Authority
Industrial Development Revenue Bonds
(Savannah Electric and Power Company Project)
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience
of reference only and is not a part
of this Trust Indenture)
PARTIES ............................................ 1
RECITALS ........................................... 1
GRANTING CLAUSE .................................... 2
HABENDUM CLAUSE .................................... 3
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds . . . . . . . . . . . . 11
SECTION 2.02. Issuance of Bonds . . . . . . . . . . . . . . . . . 11
SECTION 2.03. Form of Bonds. . . . . . . . . . . . . . . . . . . 16
SECTION 2.04. Details, Execution and Payment. . . . . . . . . . . 16
SECTION 2.05. Authentication, Registration, Exchange, Transfer
and Ownership of Bonds . . . . . . . . . . . . . . 18
SECTION 2.06. Delivery of First Series 1996 Bonds; Application of
Proceeds. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.07. Temporary Bonds . . . . . . . . . . . . . . . . . . 20
SECTION 2.08. Mutilated, Destroyed or Lost Bonds . . . . . . . . 21
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SECTION 2.09. Destruction of Bonds . . . . . . . . . . . . . . . 21
SECTION 2.10. Additional Bonds . . . . . . . . . . . . . . . . . 22
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices . . . . . . . . . . . . 23
SECTION 3.02. Notice of Redemption . . . . . . . . . . . . . . . 24
SECTION 3.03. Effect of Call for Redemption . . . . . . . . . . . 25
SECTION 3.04. Partial Redemption . . . . . . . . . . . . . . . . 25
SECTION 3.05. Funds in Trust; Unclaimed Funds . . . . . . . . . . 26
SECTION 3.06. Special Redemption . . . . . . . . . . . . . . . . 26
SECTION 3.07. Sinking Fund . . . . . . . . . . . . . . . . . . . 27
ARTICLE IV
CONVERSION OF INTEREST RATE;
DEMAND PURCHASE OPTION
SECTION 4.01. Conversion of Interest Rate on Optional Conversion
Date . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.02. Mandatory Purchase Date . . . . . . . . . . . . . . 29
SECTION 4.03. Additional Notices . . . . . . . . . . . . . . . . 30
SECTION 4.04. Demand Purchase Option . . . . . . . . . . . . . . 30
SECTION 4.05. Funds for Purchase of Bonds . . . . . . . . . . . . 31
SECTION 4.06. Delivery of Purchased Bonds . . . . . . . . . . . . 32
SECTION 4.07. Delivery of Proceeds of Sale of Purchased Bonds . . 33
SECTION 4.08. Duties of Trustee and Tender Agent with Respect to
Purchase of Bonds . . . . . . . . . . . . . . . . . 33
ARTICLE V
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GENERAL COVENANTS
SECTION 5.01. Payment of Principal and Premium, If Any, and
Interest; Limited Obligation . . . . . . . . . . . 34
SECTION 5.02. Performance of Covenants; Issuer . . . . . . . . . 35
SECTION 5.03. Instruments of Further Assurance . . . . . . . . . 35
SECTION 5.04. Recordation . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.05. Inspection of Project Books . . . . . . . . . . . . 35
SECTION 5.06. Rights Under Agreement . . . . . . . . . . . . . . 36
SECTION 5.07. Designation of Additional Paying Agents . . . . . . 36
SECTION 5.08. Existence of Issuer . . . . . . . . . . . . . . . . 36
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.01. Source of Payment of Bonds . . . . . . . . . . . . 36
SECTION 6.02. Creation of Bond Fund . . . . . . . . . . . . . . . 37
SECTION 6.03. Payments into the Bond Fund . . . . . . . . . . . . 37
SECTION 6.04. Use of Moneys in the Bond Fund . . . . . . . . . . 37
SECTION 6.05. Custody of the Bond Fund . . . . . . . . . . . . . 38
SECTION 6.06. Non-presentment of Bonds . . . . . . . . . . . . . 39
SECTION 6.07. Moneys to Be Held in Trust . . . . . . . . . . . . 39
SECTION 6.08. Repayment to the Company from the Bond Fund . . . . 39
SECTION 6.09. Letter of Credit . . . . . . . . . . . . . . . . . 40
SECTION 6.10. Creation of Construction Fund . . . . . . . . . . . 41
SECTION 6.11. Payments into the Construction Fund . . . . . . . . 41
SECTION 6.12. Disbursements from the Construction Fund . . . . . 41
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SECTION 6.13. Completion of the Project . . . . . . . . . . . . . 42
ARTICLE VII
INVESTMENTS
SECTION 7.01. Investment of Bond Fund and Construction Fund
Moneys . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.02. Permitted Investments . . . . . . . . . . . . . . . 43
ARTICLE VIII
RELEASE OF LIEN
SECTION 8.01. Release of Lien . . . . . . . . . . . . . . . . . . 44
ARTICLE IX
DEFAULT PROVISION AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 9.01. Events of Default . . . . . . . . . . . . . . . . . 47
SECTION 9.02. Acceleration . . . . . . . . . . . . . . . . . . . 48
SECTION 9.03. Other Remedies . . . . . . . . . . . . . . . . . . 49
SECTION 9.04. Legal Proceedings by Trustee . . . . . . . . . . . 49
SECTION 9.05. Right of Bondholders to Direct Proceedings . . . . 50
SECTION 9.06. Appointment of Receivers . . . . . . . . . . . . . 51
SECTION 9.07. Waiver . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.08. Application of Moneys . . . . . . . . . . . . . . . 52
SECTION 9.09. Remedies Vested in Trustee . . . . . . . . . . . . 54
SECTION 9.10. Rights and Remedies of Bondholders . . . . . . . . 54
SECTION 9.11. Termination of Proceedings . . . . . . . . . . . . 55
SECTION 9.12. Waivers of Events of Default . . . . . . . . . . . 55
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<PAGE>
SECTION 9.13. Notice of Default under Section 9.01(d);
Opportunity of Issuer and the Company to Cure Such
Default . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.14. References to Bank . . . . . . . . . . . . . . . . 56
ARTICLE X
THE TRUSTEE, THE TENDER AGENT
AND THE REMARKETING AGENT
SECTION 10.01. Acceptance of the Trusts . . . . . . . . . . . . . 57
SECTION 10.02. Fees, Charges and Expenses of Trustee . . . . . . . 61
SECTION 10.03. Notice to Bondholders if an Event of Default
Occurs . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.04. Intervention by Trustee . . . . . . . . . . . . . . 61
SECTION 10.05. Successor Trustee . . . . . . . . . . . . . . . . . 61
SECTION 10.06. Resignation by Trustee . . . . . . . . . . . . . . 62
SECTION 10.07. Removal of Trustee . . . . . . . . . . . . . . . . 62
SECTION 10.08. Appointment of Successor Trustee . . . . . . . . . 62
SECTION 10.09. Concerning Any Successor Trustee . . . . . . . . . 63
SECTION 10.10. Successor Trustee as Bond Registrar, Custodian of
Bond Fund and Paying Agent . . . . . . . . . . . . 63
SECTION 10.11. Trustee and Issuer Required to Accept Directions
and Actions of Company . . . . . . . . . . . . . . 63
SECTION 10.12. No Transfer of Letter of Credit Held by the
Trustee; Exception . . . . . . . . . . . . . . . . 64
SECTION 10.13. Filing of Certain Continuation Statements . . . . . 64
SECTION 10.14. Tender Agent . . . . . . . . . . . . . . . . . . . 65
SECTION 10.15. Qualifications of Tender Agent; Resignation;
Removal . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.16. Remarketing Agent . . . . . . . . . . . . . . . . . 66
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SECTION 10.17. Qualifications of Remarketing Agent; Resignation;
Removal . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.18. Authentication of Bonds . . . . . . . . . . . . . . 68
SECTION 10.19. Several Capacities . . . . . . . . . . . . . . . . 68
ARTICLE XI
INDENTURES SUPPLEMENTAL HERETO
SECTION 11.01. Supplemental Indentures Not Requiring Consent of
Bondholders . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.02. Supplemental Indentures Requiring Consent of
Bondholders . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.03. Trustee Authorized to Join in Supplements; Reliance
on Counsel . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XII
AMENDMENT OF AGREEMENT
SECTION 12.01. Amendments, Etc., to Agreement Not Requiring
Consent of Bondholders . . . . . . . . . . . . . . 72
SECTION 12.02. Amendments, Etc., to Agreement Requiring Consent of
Bondholders . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.03. Trustee Authorized to Join in Amendments; Reliance
on Counsel . . . . . . . . . . . . . . . . . . . . 73
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Consents, Etc., of Bondholders . . . . . . . . . . 73
SECTION 13.02. Limitation of Rights . . . . . . . . . . . . . . . 74
SECTION 13.03. Severability . . . . . . . . . . . . . . . . . . . 74
SECTION 13.04. Notices . . . . . . . . . . . . . . . . . . . . . . 74
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SECTION 13.05. Trustee as Paying Agent and Bond Registrar . . . . 75
SECTION 13.06. Payments Due on Saturdays, Sundays and Holidays . . 75
SECTION 13.07. Counterparts . . . . . . . . . . . . . . . . . . . 75
SECTION 13.08. Applicable Provisions of Law . . . . . . . . . . . 75
SECTION 13.09. Captions . . . . . . . . . . . . . . . . . . . . . 75
SECTION 13.10. Immunity of Members, Officers and Employees of
Issuer . . . . . . . . . . . . . . . . . . . . . . 75
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . 76
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<PAGE>
THIS TRUST INDENTURE made and entered into as of
January 1, 1996, by and between the SAVANNAH ECONOMIC
DEVELOPMENT AUTHORITY, a public body corporate and politic
and an instrumentality of the State of Georgia duly
organized and existing under the Constitution and laws of
the State of Georgia (the "Issuer"), and _________________
____________________, a _____________________________ duly
organized, existing and authorized to accept and execute
trusts of the character herein set out under and by virtue
of the laws of _____________, with its principal corporate
trust office located in __________, ___________, as trustee
(the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the
Issuer has entered into a Lease Agreement dated as of
January 1, 1996 (the "Agreement") with Savannah Electric
and Power Company (the "Company") providing for the
undertaking by the Issuer to acquire, construct, install
and equip, and lease to the Company, certain facilities
comprising the Project (as defined in the Agreement) in
connection with the Company's Plant Kraft (Port Wentworth)
in Chatham County, Georgia.
B. The Agreement provides that, for the purposes
therein set forth, the Issuer will issue and sell its
Industrial Development Revenue Bonds (Savannah Electric and
Power Company Project) in one or more series (the "Bonds");
and that the Issuer will lease the Project to the Company
for the rental payments stated in the Agreement.
C. The execution and delivery of this Indenture (as
hereinafter defined) and the Agreement have been in all
respects duly and validly authorized by resolution duly
adopted by the Issuer.
D. In order to provide funds for the purposes set
forth in the Agreement, the Issuer has duly authorized the
issuance and sale of its Industrial Development Revenue
Bonds (Savannah Electric and Power Company Project), First
Series 1996, in the aggregate principal amount of
$____________ (the "First Series 1996 Bonds").
E. No Letter of Credit (as hereinafter defined) is to
be provided in connection with the initial issuance of the
First Series 1996 Bonds; however, subsequent to such
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initial issuance, the Company may, in its sole discretion,
furnish a Letter of Credit and, under certain circumstances
described in this Indenture, the Company may obtain a
Substitute Letter of Credit (as hereinafter defined) in
substitution for any Letter of Credit.
F. All acts, conditions and things required by the
Constitution and laws of the State of Georgia to happen,
exist and be performed precedent to and in the execution
and delivery of this Indenture and the Agreement have
happened, exist and have been performed as so required, in
order to make this Indenture a valid and binding trust
indenture for the security of the Bonds in accordance with
its terms and in order to make the Agreement a valid and
binding lease agreement in accordance with its terms.
G. The Trustee has accepted the trusts created by
this Indenture and in evidence thereof has joined in the
execution hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the
Trustee of the trusts hereby created, and the purchase and
acceptance of the Bonds by the holders thereof, and also
for and in consideration of the sum of One Dollar ($1.00)
to the Issuer in hand paid by the Trustee at or before the
execution and delivery of this Indenture, the receipt of
which is hereby acknowledged, and for the purpose of fixing
and declaring the terms and conditions upon which the Bonds
are to be issued, authenticated, delivered, secured and
accepted by all persons who shall from time to time be or
become holders thereof, and in order to secure the payment
of all Bonds at any time issued and outstanding hereunder
and the interest and the redemption premiums, if any,
thereon and the Purchase Price (as hereinafter defined)
therefor according to their tenor, purport and effect, and
in order to secure the performance and observance of all
the covenants, agreements and conditions therein or herein
contained; the Issuer has executed and delivered this
Indenture; the Issuer does hereby bargain, sell, convey,
assign and pledge to the Trustee, and grant to the Trustee
a security interest in, all rights, title and interests of
the Issuer in, to and under the Agreement and all moneys
receivable thereunder (except for payments to be received
under Sections 4.2 and 5.3 of the Agreement) and all funds
held by the Trustee hereunder (other than moneys held for
the purchase of Bonds which have not been presented for
payment) as security first for the payment of all
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outstanding First Series 1996 Bonds and any Additional
Bonds and the interest and the premium, if any, thereon and
for the satisfaction of any other obligation assumed by it
in connection with all outstanding Bonds at any time issued
hereunder, and second, to the Bank for the payment of all
amounts owed by the Company to the Bank (as hereinafter
defined) pursuant to the Credit Agreement (as hereinafter
defined);
TO HAVE AND TO HOLD the same unto the Trustee and its
successors in trust forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth, for the equal and proportionate benefit and
security of all and singular present and future holders of
the Bonds issued and to be issued under this Indenture,
without preference, priority or distinction as to lien or
otherwise, except as otherwise hereinafter provided, of any
one Bond over any other Bond, by reason of priority in the
issue, sale or negotiation thereof or otherwise and for the
benefit of the Bank as hereinabove provided;
PROVIDED, HOWEVER, that if the Issuer, its successors
or assigns shall pay or cause to be paid the principal of,
premium, if any, and interest on the Bonds due or to become
due thereon, at the times and in the manner mentioned in
the Bonds, and shall cause the payments to be made into the
Bond Fund (as hereinafter defined) as required under
Article VI hereof or shall provide, as permitted hereby,
for the payment thereof pursuant to the provisions of
Article VIII hereof, and shall perform all the covenants
and conditions required of it by this Indenture, and shall
pay or cause to be paid to the Trustee and any additional
paying agents all sums of money due or to become due to
them in accordance with the terms and provisions hereof,
then upon such final payments this Indenture and the rights
hereby granted shall terminate and the Trustee shall
release this Indenture and shall execute such documents to
evidence such termination and release as may be reasonably
required by the Issuer; otherwise this Indenture is to be
and shall remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and
secured hereunder are to be issued, authenticated and
delivered, and all said property, rights and interests,
including, without limitation, the amounts hereby assigned
and pledged, are to be dealt with and disposed of subject
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to the terms of this Indenture, and the Issuer agrees with
the Trustee and with the respective holders and owners,
from time to time, of said Bonds, or part thereof, as
follows:
ARTICLE I
DEFINITIONS
The terms "Agreement", "Company" and "Issuer" have the
same meanings given and assigned to such words in the
Recitals hereto. The terms "Completion Date", "Cost of
Construction" and "Project" defined in Article I of the
Agreement shall have the same meanings in this Indenture.
In addition, the following words and phrases shall have the
following meanings:
"Act" means all applicable provisions of the
Constitution and laws of the State of Georgia with respect
to the Issuer including specifically, but without
limitation, the Amendments to the Constitution of the State
of Georgia contained in Georgia Laws 1951, page 854 et
seq., Georgia Laws 1965, page 675 et seq., and Georgia Laws
1972, page 1569 et seq., and those acts of the General
Assembly contained in Georgia Laws 1925, page 1451 et seq.,
Georgia Laws 1951, page 190 et seq., Georgia Laws 1955,
page 170 et seq., Georgia Laws 1956, page 329 et seq.,
Georgia Laws 1958, page 2459 et seq., Georgia Laws 1961,
page 2958 et seq., Georgia Laws 1966, page 2544 et seq.,
Georgia Laws 1967, page 2062 et seq., Georgia Laws 1972,
page 1186 et seq., Georgia Laws 1975, page 3131 et seq.,
Georgia Laws 1977, pages 184 et seq., and 898 et seq.,
Georgia Laws 1989, page 380 et seq., Georgia Laws 1982,
page 993 et seq., and Georgia Laws 1989, page 47 et seq.
"Act of Bankruptcy" means the filing of a petition in
bankruptcy (or any other commencement of a bankruptcy or
similar proceeding) by or against the Company or the Issuer
under any applicable bankruptcy, insolvency, reorganization
or similar law, now or hereafter in effect.
"Additional Bonds" means the bonds authorized to be
issued under Section 2.10 of this Indenture.
"Adjustable Rate" means the interest rate borne by the
First Series 1996 Bonds from the date of initial issuance
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and delivery thereof to (but not including) the Conversion
Date, as said rate is determined in accordance with Section
2.02(c) hereof.
"Authorized Denominations" means (i) prior to the
Conversion Date, denominations of $100,000 or integral
multiples of $5,000 in excess thereof, and (ii) from and
after the Conversion Date, denominations of $5,000 or
integral multiples thereof.
"Available Moneys" means (a) with respect to any
payment date occurring during the term of the Letter of
Credit, (i) moneys drawn under the Letter of Credit, or
(ii) moneys deposited into the Bond Fund pursuant to
Section 6.03 hereof or moneys deposited directly by the
Company with the Trustee, in any such case, which moneys
have been on deposit with the Trustee for at least 123 days
during and prior to which no Act of Bankruptcy shall have
occurred, or (iii) the proceeds of the sale of refunding
obligations, if, in the opinion of nationally recognized
counsel experienced in bankruptcy matters, the application
of such moneys will not constitute a voidable preference in
the event of the occurrence of an Act of Bankruptcy, or
(iv) the proceeds from investment of moneys qualifying as
Available Moneys under clause (i), (ii) or (iii) above, and
(b) with respect to any payment date not occurring during
the term of the Letter of Credit, any moneys held by the
Trustee and the proceeds from the investment thereof.
Notwithstanding the foregoing, when used with respect to
payment of any amounts due in respect of any Pledged Bonds,
the term "Available Moneys" shall mean any moneys held by
the Trustee and the proceeds from the investment thereof,
except for moneys drawn under the Letter of Credit.
"Bank" means any issuer of a Letter of Credit.
"Bonds" means the bonds authorized to be issued under
Sections 2.02 and 2.10 of this Indenture.
"Bond Fund" means the trust fund created by
Section 6.02 of this Indenture.
"Bond Registrar" means the party so designated pursuant
to Section 13.05 hereof and its successors and assigns.
"Bondholder" or "Holder" or "owner of the Bonds" means
the person in whose name any Bond is registered.
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"Business Day" means a day, other than a Saturday or
Sunday, on which the Bank, the Trustee and commercial banks
located in Atlanta, Georgia and New York City, New York,
are open for the purpose of conducting a commercial banking
business.
"Construction Fund" means the trust fund created by
Section 6.10 of this Indenture.
"Conversion Date" or "Optional Conversion Date" means
the Interest Payment Date, which shall be a Business Day,
from and after which the interest rate on the Bonds is
converted from the Adjustable Rate to the Fixed Rate as a
result of the exercise by the Company of the Conversion
Option.
"Conversion Option" means the option granted to the
Company in Section 4.01 hereof pursuant to which the
interest rate on the Bonds is converted from the Adjustable
Rate to the Fixed Rate as of the Optional Conversion Date.
"Credit Agreement" means the letter of credit agreement
or reimbursement or similar agreement between the Company
and any Bank and any amendments and supplements thereto.
"Demand Purchase Option" means the option granted to
owners of Bonds, while the Bonds bear interest at the
Adjustable Rate, to require that Bonds be purchased prior
to the Conversion Date pursuant to Section 4.04 hereof.
"event of default" means any occurrence or event
described in Section 9.01 hereof.
"Fixed Rate" means the fixed, non-floating interest
rate in effect on the Bonds from and after the Conversion
Date, as said rate is determined in accordance with Section
2.02(d) hereof.
"Government Obligations" means (a) direct obligations
of the United States of America for the payment of which
the full faith and credit of the United States of America
is pledged, or (b) obligations issued by a person
controlled or supervised by and acting as an
instrumentality of the United States of America, the
payment of the principal of and premium, if any, and
interest on which is fully and unconditionally guaranteed
as a full faith and credit obligation by the United States
of America.
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"Indenture" means this Trust Indenture and any
indenture supplemental hereto.
"Interest Payment Date" means (i) so long as the Bonds
bear interest at the Adjustable Rate, the Interest Payment
Date for each Interest Period shall be the first day of the
next succeeding Interest Period; provided, that so long as
the Interest Period is one week in duration, the term
Interest Payment Date shall mean the first day of each
calendar month, and (ii) so long as the Bonds bear interest
at the Fixed Rate, January 1 and July 1 in each year,
commencing on the January 1 or July 1 next succeeding the
Conversion Date.
"Interest Period" means the period from the date of
initial issuance and delivery of the Bonds to and including
the next succeeding Tuesday (unless the Bonds are issued
and delivered on a Tuesday, in which case the first
Interest Period shall include only such Tuesday), and each
period of one week's duration thereafter, commencing on
Wednesday of each week and continuing through Tuesday of
the following week. At the option of the Company, the
duration of the Interest Period may be adjusted in
accordance with the provisions of Section 2.02(c)(ii)
hereof, in which event the term "Interest Period" shall
mean (i) for any period of time of one week's duration, the
period commencing Wednesday of each week and continuing
through Tuesday of the following week, (ii) for any period
of time of one month's duration, the period commencing on
the first day of each calendar month and terminating on
the last day of such month, (iii) for any period of time of
three month's duration, the period commencing on the first
day of the first calendar month and terminating on the last
day of the third calendar month, and (iv) for any period of
time of six month's duration, the period commencing on the
first day of the first calendar month and terminating on
the last day of the sixth calendar month. Under no
circumstances shall the Interest Period exceed six months
in duration. The duration of the Interest Period may be
adjusted effective only on the day following the last day
of the preceding Interest Period; provided, however, that
an Interest Period of one week's duration may be adjusted
to any other authorized duration only on the first day of
each calendar month. In the event the duration of the
Interest Period is to be adjusted from one week to another
authorized duration pursuant to the provisions of Section
2.02(c)(ii) of this Indenture, and the expiration of the
last Interest Period prior to the first calendar day of the
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month does not occur on the last day of a calendar month,
then in such event the duration of such Interest Period
shall be increased or decreased at the discretion of the
Remarketing Agent, by not more than six (6) days, in order
to cause the expiration of such Interest Period to occur on
the last day of the calendar month.
"Letter of Credit" means any letter of credit, line of
credit, insurance policy or other credit facility provided
by the Company pursuant to Section 3.5 of the Agreement,
including any Substitute Letter of Credit.
"Letter of Credit Termination Date" means the later of
(i) that date upon which the Letter of Credit shall expire
or terminate pursuant to its terms, or (ii) that date to
which the expiration or termination of the Letter of Credit
may be extended, from time to time, either by extension or
renewal of the existing Letter of Credit or the issuance of
a Substitute Letter of Credit.
"Mandatory Purchase Date" means the Interest Payment
Date immediately preceding the Letter of Credit Termination
Date.
"Maximum Interest Rate" means, so long as the Bonds
bear interest at the Adjustable Rate, an interest rate per
annum equal to the lesser of (i) the maximum rate permitted
by law and (ii) 12%, and otherwise shall mean the maximum
rate permitted by law.
"Moody's" means Moody's Investors Service, Inc., a
corporation organized and existing under the laws of the
State of Delaware, its successors and assigns and, if such
corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency,
"Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the
Company with the approval of the Remarketing Agent, by
notice to the Trustee.
"Outstanding" or "Bonds outstanding" means all Bonds
which have been authenticated and delivered by the Trustee
under this Indenture, except:
(a) Bonds cancelled after purchase or because of
payment at or redemption prior to maturity;
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(b) Bonds deemed to be paid in accordance with
Article VIII hereof;
(c) Bonds in exchange for which, or upon the
transfer of which, other Bonds have been authenticated
under Section 2.05 hereof;
(d) Bonds in lieu of which other Bonds have been
authenticated under Sections 2.07 and 2.08 hereof; and
(e) Untendered Bonds (as defined in Sections
2.02(c)(ii), 4.01 and 4.02 hereof).
"Par" means one hundred percent (100%) of the principal
amount of any Bond, or of the aggregate principal amount of
the Bonds outstanding, as the context may require,
exclusive of accrued interest.
"Paying Agent" means the party so designated under
Section 13.05 hereof and its successors and assigns, and
such additional Paying Agents as may be designated pursuant
to Section 5.07 hereof.
"Pledge Agreement" means the pledge and security
agreement or other similar agreement between the Company
and any Bank, and any amendments or supplements thereto.
"Pledged Bonds" means any Bonds which shall, at the
time of determination thereof, be held by the Bank pursuant
to the Pledge Agreement.
"Preliminary Interest Rate" means the preliminary
interest rate required to be determined by the Remarketing
Agent upon any change in the duration of the Interest
Period.
"Preliminary Rate Determination Date" means the
fifteenth (15th) day next preceding the Rate Determination
Date (or if such date is not a Business Day, then the
Business Day immediately preceding such date).
"Purchase Price" means an amount equal to 100% of the
principal amount of any Bond tendered or deemed tendered
pursuant to Section 2.02(c)(ii), 4.01, 4.02 or 4.04 hereof,
plus, in the case of purchase pursuant to Section 4.04
hereof, accrued and unpaid interest thereon to the date of
purchase.
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"Rate Determination Date" means the first day of each
Interest Period that has a duration different from the
preceding Interest Period, on which date the Remarketing
Agent shall establish the Adjustable Rate for such Interest
Period (or if such date is not a Business Day, then the
Business Day immediately preceding such date).
"Rating Agency" means Moody's when the Bonds are rated
by Moody's, and S&P when the Bonds are rated by S&P.
"Record Date" means (a) so long as the Bonds bear
interest at the Adjustable Rate, that day which is the
second (2nd) Business Day next preceding any Interest
Payment Date, and (b) so long as the Bonds bear interest at
the Fixed Rate, the fifteenth (15th) day of the month next
preceding any Interest Payment Date.
"Remarketing Agent" means the Remarketing Agent acting
as such under the Remarketing Agreement. "Principal
Office" of the Remarketing Agent means the principal office
of the Remarketing Agent designated in the Remarketing
Agreement.
"Remarketing Agreement" means the Remarketing Agreement
dated as of the date of this Indenture between the Company
and the Remarketing Agent, and any amendments or
supplements thereto or any successor agreement.
"S&P" means Standard & Poor's Corporation, a
corporation organized and existing under the laws of the
State of New York, its successors and their assigns and, if
such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency designated
by the Company with the approval of the Remarketing Agent,
by notice to the Trustee.
"Substitute Letter of Credit" means a letter of credit,
line of credit, insurance policy or other credit facility
delivered to the Trustee in accordance with Section 3.5(b)
of the Agreement (i) issued by the Bank, (ii) replacing any
existing Letter of Credit, (iii) dated as of a date prior
to the expiration or termination date of the Letter of
Credit for which the same is to be substituted, (iv) which
shall expire on a date which is at least six (6) days after
an Interest Payment Date, and (v) issued on substantially
identical terms and conditions as the then existing Letter
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of Credit, except that the Substitute Letter of Credit may
expire on a date which is later than the expiration date of
the Letter of Credit being replaced, and except that the
stated amount of the Substitute Letter of Credit shall
equal the sum of (a) the aggregate principal amount of
Bonds at the time outstanding plus (b) an amount equal to
at least 50 days' interest (computed at the Maximum
Interest Rate) on all Bonds at the time outstanding.
"Tender Agent" means _____________________, a _________
______________, and its successors and any corporation
resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor
Tender Agent at the time serving as successor Tender Agent
hereunder. "Principal Office" of the Tender Agent means
the address specified pursuant to Section 10.14 hereof.
"Tender Date" means (i) during any Interest Period of
other than one week's duration, any Interest Payment Date,
(ii) during any Interest Period of one week's duration, the
seventh (7th) day (unless such day is not a Business Day,
in which case the next Business Day) following receipt by
the Tender Agent of notice from the owner that such owner
has elected to tender Bonds (as more fully described in
Section 4.04 hereof), and (iii) the Conversion Date.
"Trustee" means the trustee serving as such under this
Indenture, including any successor Trustee serving or
appointed pursuant to Section 10.05 or 10.08 hereof.
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No bonds
may be issued under the provisions of this Indenture except
in accordance with this Article II.
SECTION 2.02. Issuance of Bonds.
(a) There shall be initially issued under and secured
by this Indenture Bonds of the Issuer, in the aggregate
principal amount of __________________________ Dollars
($____________), for the purposes set forth in the
Agreement. Said Bonds shall be designated "Savannah
Economic Development Authority Industrial Development
Revenue Bonds (Savannah Electric and Power Company
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Project), First Series 1996", shall bear interest at
the rates set forth in this Indenture and shall mature,
subject to prior redemption as hereinafter set forth,
on the 1st day of January, 2026.
(b) The First Series 1996 Bonds shall bear interest at
the Adjustable Rate, as the same shall be determined
from time to time pursuant to the provisions of Section
2.02(c) hereof, calculated on the basis of (i) actual
days elapsed in a 365- or 366-day year, as the case may
be, so long as the Interest Period is one week or one
month in duration, and (ii) a 360-day year comprised of
twelve 30-day months, so long as the Interest Period is
three months or six months in duration, until the
earlier of the Conversion Date or maturity. From and
after the Conversion Date, the First Series 1996 Bonds
shall bear interest at the Fixed Rate, determined in
accordance with Section 2.02(d) hereof, on the basis of
a 360-day year comprised of twelve 30-day months.
Anything herein contained to the contrary
notwithstanding, at no time shall the Adjustable Rate
exceed the Maximum Interest Rate.
(c) (i) Prior to the Conversion Date, the First
Series 1996 Bonds shall bear interest at the Adjustable
Rate, as hereinafter described. The Adjustable Rate
for each Interest Period will be determined by the
Remarketing Agent on the first day of each such
Interest Period, as follows: the interest rate for each
Interest Period shall be established at a rate equal to
the interest rate per annum that, in the sole judgment
of the Remarketing Agent, taking into account
prevailing financial market conditions, would be the
minimum interest rate required to sell the First Series
1996 Bonds at a price of Par on the date of such
determination. Upon determining the Adjustable Rate
for each Interest Period, the Remarketing Agent shall
notify the Trustee and the Company of such rate by
telephone or such other manner as may be appropriate by
not later than 2:00 P.M., Atlanta, Georgia time on the
date of such determination, which notice shall be
promptly confirmed in writing. Notwithstanding the
foregoing, no adjustment shall be made to the
Adjustable Rate for an Interest Period commencing after
the second (2nd) Business Day prior to any Interest
Payment Date or a date fixed for redemption, and the
First Series 1996 Bonds shall bear interest during such
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Interest Period at the rate in effect during the
immediately preceding Interest Period.
(ii) The Company is authorized to adjust the
duration of the Interest Period prior to the Conversion
Date and, in that connection, shall instruct the
Remarketing Agent, not later than the fifth day prior
to the Preliminary Rate Determination Date, to compute
the Adjustable Rate on the basis of an Interest Period
of one week, one month, three months or six months. In
the event the Company elects to adjust the duration of
the Interest Period, the Company shall notify the
Trustee in writing, on the date such instruction is
provided to the Remarketing Agent, of such an election
with respect to the Interest Period and of the Rate
Determination Date on which such new Interest Period
shall commence.
Following receipt of instructions from the Company
regarding the computation of the Adjustable Rate based
upon a change in the duration of the Interest Period,
the Remarketing Agent shall, on the Preliminary Rate
Determination Date, determine the Preliminary Interest
Rate for the First Series 1996 Bonds. Upon determining
the Preliminary Interest Rate, the Remarketing Agent
shall notify the Trustee and the Company thereof by
telephone or such other manner as may be appropriate by
not later than 2:00 P.M., Atlanta, Georgia time on the
date of such determination, which notice shall be
promptly confirmed in writing.
The Trustee shall then mail notice to the
registered owners of such Bonds in the form attached
hereto as Exhibit "C", not more than two Business Days
following the Preliminary Rate Determination Date,
stating (i) that the duration of the Interest Period
will be adjusted as of the first day of the next
succeeding Interest Period and specifying the duration
of the Interest Period and the date of the commencement
of such Interest Period; (ii) the Preliminary Interest
Rate; (iii) that the Remarketing Agent will determine
the Adjustable Rate for such Interest Period on the
Rate Determination Date and that in no event will such
rate be lower than the Preliminary Interest Rate;
(iv) that the date of commencement of such Interest
Period is a Tender Date, and that the owners of such
Bonds shall be deemed to have tendered their Bonds on
such Tender Date unless the owners of such Bonds have
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directed the Trustee not to purchase their Bonds on
such Tender Date by providing the notice described
below; (v) that if such notice of election not to
tender is given by the owners to the Trustee within the
period set forth in such notice, then the owners of
such Bonds will not be entitled to tender such Bonds
until the next succeeding Tender Date; and (vi) that
any election not to tender given in accordance with
such procedure will be irrevocable.
As described above, the owner of a Bond that is
subject to mandatory tender because the Company has
elected to change the duration of the Interest Period
shall have the option to make an irrevocable election
not to tender such Bond for purchase on the Tender
Date. In order to exercise such option, the owner of
such Bond shall give to the Trustee on or prior to
12:30 P.M., Atlanta, Georgia time, on the seventh (7th)
day preceding such Tender Date (or, if such day is not
a Business Day, the next preceding Business Day)
written notice stating (a) the principal of the Bonds
which the owner elects not to tender, (b) the Bond
numbers of such Bonds, (c) that such owner irrevocably
elects not to tender such Bonds on such Tender Date,
and (d) that such owner acknowledges that the duration
of the next Interest Period will differ from the
duration of the Interest Period then ending.
Owners of Bonds not providing the Trustee with the
notice described above shall be required to tender
their Bonds to the Tender Agent for purchase at the
Purchase Price, and any such Bonds not so tendered on
the Rate Determination Date ("Untendered Bonds") for
which there has been irrevocably deposited in trust
with the Tender Agent an amount of moneys sufficient to
pay the Purchase Price of the Untendered Bonds, shall
be deemed to have been purchased pursuant to this
Section 2.02(c)(ii). IN THE EVENT OF A FAILURE BY AN
OWNER OF BONDS (OTHER THAN AN OWNER OF BONDS WHO HAS
GIVEN NOTICE AS PROVIDED ABOVE) TO TENDER ITS BONDS ON
OR PRIOR TO THE RATE DETERMINATION DATE, SAID OWNER
SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY
INTEREST TO ACCRUE SUBSEQUENT TO THE RATE DETERMINATION
DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNTENDERED
BONDS, AND ANY UNTENDERED BONDS SHALL NO LONGER BE
ENTITLED TO THE BENEFITS OF THIS INDENTURE, EXCEPT FOR
THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREFOR.
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On the Rate Determination Date, the Remarketing
Agent shall establish the Adjustable Rate for the First
Series 1996 Bonds for the Interest Period commencing on
the Rate Determination Date, and shall notify the
Trustee and the Company thereof by telephone or such
other manner as may be appropriate by not later than
2:00 P.M., Atlanta, Georgia time on the date of such
determination, which notice shall be promptly confirmed
in writing. The Preliminary Interest Rate and the
Adjustable Rate on the First Series 1996 Bonds for such
Interest Period shall be established at a rate equal to
the interest rate per annum that, in the sole judgment
of the Remarketing Agent, taking into account
prevailing financial market conditions, would be the
minimum interest rate required to sell the First Series
1996 Bonds at a price of Par on the Rate Determination
Date; provided, that the Adjustable Rate on the First
Series 1996 Bonds for such Interest Period shall in no
event be less than the Preliminary Interest Rate. The
Adjustable Rate determined by the Remarketing Agent for
the First Series 1996 Bonds will take effect on the
first day of the Interest Period for which such rate
was determined.
(iii) The determination of the Adjustable Rate
(absent manifest error) shall be conclusive and binding
upon the Issuer, the Company, the Trustee, the Bank,
the Tender Agent, the Bond Registrar and the owners of
the Bonds. If for any reason the Remarketing Agent
shall fail to establish the Adjustable Rate for any
Interest Period, the First Series 1996 Bonds shall bear
interest during such Interest Period at the Adjustable
Rate in effect during the immediately preceding
Interest Period.
(d) (i) On and after the Conversion Date, the
interest rate shall be the Fixed Rate, determined as
follows: commencing on the Conversion Date and
thereafter through and including the maturity or prior
redemption of the First Series 1996 Bonds, the Fixed
Rate shall be the interest rate per annum which, in the
sole judgment of the Remarketing Agent, taking into
account prevailing financial market conditions, would
be the minimum interest rate required to sell such
Bonds on the Conversion Date at a price equal to Par.
The Fixed Rate shall be determined by the Remarketing
Agent on or before the second (2nd) Business Day
preceding the Conversion Date, and the Remarketing
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Agent shall notify the Trustee and the Company thereof
by telephone or such other manner as may be appropriate
by not later than 2:00 P.M., Atlanta, Georgia time on
such date, which notice shall be promptly confirmed in
writing.
(ii) The determination of the Fixed Rate by the
Remarketing Agent in accordance with the provisions of
this Section (absent manifest error) shall be
conclusive and binding upon the Issuer, the Company,
the Trustee, the Bank, the Tender Agent, the Bond
Registrar and the owners of all the Bonds.
SECTION 2.03. Form of Bonds. The definitive Bonds are
issuable as fully registered Bonds without coupons in
Authorized Denominations. The definitive Bonds bearing
interest at the Adjustable Rate shall be substantially in
the form set forth in Exhibit "A" hereto, and the
definitive Bonds bearing interest at the Fixed Rate shall
be substantially in the form set forth in Exhibit "B"
hereto, in each case with such appropriate variations,
omissions and insertions as are permitted or required by
this Indenture, and may have endorsed thereon such legends
or text as may be necessary or appropriate to conform to
any applicable rules and regulations of any governmental
authority or any usage or requirement of law with respect
thereto.
SECTION 2.04. Details, Execution and Payment. Each
Bond of each series shall bear interest from the latest
Interest Payment Date to which interest has been paid or
duly provided for on the Bonds of such series preceding the
date of authentication, unless such date of authentication
is an Interest Payment Date to which interest is being paid
or duly provided for on the Bonds of such series, in which
case it shall bear interest from such date of
authentication, provided that Bonds of each series
authenticated prior to the first Interest Payment Date of
such series shall bear interest from the date of initial
issuance and delivery of such series.
The Bonds shall be executed by the facsimile signature
of the President or Vice Chairman of the Issuer and the
official seal of the Issuer or a facsimile thereof shall be
affixed thereto and attested by the manual or facsimile
signature of the Secretary or Assistant Secretary of the
Issuer. The validation certificate on the Bonds shall be
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executed by the manual or facsimile signature of the Clerk
of the Superior Court of Chatham County, Georgia.
All authorized facsimile signatures shall have the same
force and effect as manual signatures.
In case any officer whose signature or facsimile
signature shall appear on any Bonds shall cease to be such
officer before the delivery of such Bonds, such signature
or such facsimile shall nevertheless be valid and
sufficient for all purposes as if he had remained in office
until such delivery, and also any Bond may be signed by or
bear the facsimile signature of such persons as at the
actual time of the execution of such Bond shall be the
proper officers to sign such Bond although at the date of
such Bond such persons may not have been such officers.
The principal of and premium, if any, and interest on
the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of
payment thereof is legal tender for the payment of public
and private debts. The principal of and premium, if any,
on all Bonds shall be payable at the principal corporate
trust office of the Trustee, and payment of the interest on
each Bond shall be made by the Trustee on each Interest
Payment Date to the person appearing on the registration
books of the Issuer hereinafter provided for as the owner
thereof at the close of business on the Record Date with
respect to such Interest Payment Date, by check or draft
mailed to such owner at his address as it appears on such
registration books; provided that, prior to the Conversion
Date, any Holder of a First Series 1996 Bond or Bonds in an
aggregate principal amount of not less than $500,000 may,
by prior written instructions filed with the Trustee (which
instructions shall remain in effect until revoked by
subsequent written instructions), instruct that interest
payments for any period prior to the Conversion Date be
made by wire transfer to an account in the continental
United States. Payment of the principal of and premium, if
any, on all Bonds shall be made upon the presentation and
surrender of such Bonds as the same shall become due and
payable.
The person in whose name any First Series 1996 Bond is
registered at the close of business on any Record Date with
respect to any Interest Payment Date shall be entitled to
receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such First Series 1996
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Bond upon any transfer or exchange thereof subsequent to
the Record Date and prior to such Interest Payment Date,
except if and to the extent there shall be a default in the
payment of the interest due on such Interest Payment Date,
in which case such defaulted interest shall be paid to the
person in whose name such First Series 1996 Bond (or any
First Series 1996 Bond or Bonds issued, directly or after
intermediate transactions, upon transfer or exchange or in
substitution thereof) is registered on a subsequent record
date for such payment established as hereinafter provided.
A subsequent record date may be established by the Issuer
at the direction of the Company by notice mailed to the
holders of the First Series 1996 Bonds not less than ten
days preceding such record date, which record date shall
not be less than five nor more than thirty days prior to
the subsequent interest payment date.
SECTION 2.05. Authentication, Registration, Exchange,
Transfer and Ownership of Bonds. Only such of the Bonds as
shall have endorsed thereon a certificate of authentication
substantially in the form set forth in Exhibits "A" and "B"
hereto, duly executed by the Trustee, shall be entitled to
any benefit or security under this Indenture. No Bond
shall be valid or obligatory for any purpose unless and
until such certificate of authentication shall have been
duly executed by the Trustee, and such certificate of the
Trustee upon any such Bond shall be conclusive evidence
that such Bond has been duly authenticated and delivered
under this Indenture. The Trustee's certificate of
authentication on any Bond shall be deemed to have been
duly executed if signed by an authorized representative of
the Trustee, but it shall not be necessary that the same
person sign the certificate of authentication on all of the
Bonds that may be issued hereunder at any one time.
Bonds, upon surrender thereof at the principal
corporate trust office of the Trustee, may, at the option
of the owner thereof, be exchanged for an equal aggregate
principal amount of Bonds of the same series and maturity
and of any Authorized Denomination or Denominations.
The Issuer shall make provision for the exchange of
Bonds at the principal corporate trust office of the
Trustee.
The Trustee is hereby appointed as Bond Registrar and
as such shall keep books for the registration and for the
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registration of transfer of Bonds as provided in this
Indenture.
The transfer of any Bond may be registered only upon
the books kept for the registration and registration of
transfer of Bonds upon surrender thereof to the Bond
Registrar together with an assignment duly executed by the
owner or his attorney or legal representative in such form
as shall be satisfactory to the Bond Registrar. Upon any
such registration of transfer the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange for
such Bond a new Bond or Bonds, registered in the name of
the transferee, of any Authorized Denomination or
Denominations in an aggregate principal amount equal to the
principal amount of such Bond and of the same series and
maturity.
In all cases in which Bonds shall be exchanged or the
transfer of Bonds shall be registered hereunder, the Issuer
shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time Bonds in
accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchange or registration of
transfer shall forthwith be cancelled by the Trustee. The
Issuer or the Trustee may make a charge for every such
exchange or registration of transfer of Bonds sufficient to
reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such exchange or
registration of transfer, and such charge shall be paid
before any such new Bonds shall be delivered.
As to any Bond, the person in whose name the same shall
be registered shall be deemed and regarded as the absolute
owner thereof for all purposes, and payment of or on
account of the principal of or interest on any such Bond
shall be made only to or upon the order of the owner
thereof or his legal representative. All such payments
shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon,
to the extent of the sum or sums so paid. Neither the
Issuer, the Trustee, the Tender Agent, the Paying Agent,
the Remarketing Agent, the Company nor the Bond Registrar
shall be affected by any notice to the contrary.
SECTION 2.06. Delivery of First Series 1996 Bonds;
Application of Proceeds. Upon the execution and delivery
of this Indenture, the Issuer shall execute and deliver to
the Trustee and the Trustee shall authenticate the First
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Series 1996 Bonds and deliver them to the purchasers
thereof as directed by the Issuer as hereinafter in this
Section 2.06 provided.
Prior to the delivery by the Trustee of any such Bonds,
there shall be delivered to the Trustee:
(a) A copy, certified by the Secretary or
Assistant Secretary of the Issuer, of the resolutions
adopted by the Issuer authorizing the execution and
delivery of the Agreement, and authorizing the
execution and delivery of this Indenture and the
issuance of the First Series 1996 Bonds.
(b) An executed counterpart of the Agreement.
(c) A request and authorization to the Trustee on
behalf of the Issuer, signed by the President or Vice
Chairman of the Issuer, to authenticate and deliver the
First Series 1996 Bonds to the purchasers therein
identified upon payment to the Trustee, but for the
account of the Issuer, of a sum specified in such
request and authorization.
Upon the issuance and delivery of the First Series 1996
Bonds, the Trustee shall apply the proceeds from the sale
of the First Series 1996 Bonds as follows:
(a) The accrued interest (if any) received from
the sale of the First Series 1996 Bonds shall be
deposited in the Bond Fund; and
(b) The balance of such proceeds shall be
deposited in the Construction Fund.
SECTION 2.07. Temporary Bonds. Until definitive Bonds
are ready for delivery, there may be executed, and upon
request of the Issuer the Trustee shall authenticate and
deliver, in lieu of definitive Bonds and subject to the
same limitations and conditions, temporary printed,
engraved, lithographed or typewritten Bonds, in the form of
registered Bonds without coupons in Authorized
Denominations, as the Issuer by resolution may provide,
substantially of the tenor herein set forth and with such
appropriate omissions, insertions and variations as may be
required.
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Until definitive Bonds are ready for delivery, any
temporary Bond may, if so provided by the Issuer by
resolution, be exchanged at the principal corporate trust
office of the Trustee, without charge to the holder
thereof, for an equal aggregate principal amount of
temporary Bonds of like tenor and of the same series and
maturity.
If temporary Bonds shall be issued, the Issuer shall
cause the definitive Bonds to be prepared and to be
executed and delivered to the Trustee, and the Trustee,
upon presentation to it at its principal corporate trust
office of any temporary Bond, shall cancel the same and
authenticate and deliver in exchange therefor at the
principal corporate trust office of the Trustee, without
charge to the Holder thereof, a definitive Bond or Bonds of
an equal aggregate principal amount, of the same maturity
and having the same terms as the temporary Bond
surrendered. Until so exchanged, the temporary Bonds shall
in all respects be entitled to the same benefit and
security of this Indenture as the definitive Bonds to be
issued and authenticated hereunder.
SECTION 2.08. Mutilated, Destroyed or Lost Bonds. In
case any Bond secured hereby shall become mutilated or be
destroyed or lost, the Issuer shall cause to be executed,
and the Trustee shall authenticate and deliver, a new Bond
of like date and tenor in exchange and substitution for and
upon the cancellation of such mutilated Bond, or in lieu of
and in substitution for such Bond destroyed or lost, upon
the Holder's paying the reasonable expenses and charges of
the Issuer and the Trustee in connection therewith and, in
the case of a Bond destroyed or lost, his filing with the
Trustee evidence satisfactory to it and to the Issuer that
such Bond was destroyed or lost, and of his ownership
thereof, and furnishing the Issuer and the Trustee
indemnity satisfactory to them.
SECTION 2.09. Destruction of Bonds. All Bonds paid,
redeemed or purchased, either at or before maturity, shall
be cancelled upon the payment, redemption or purchase of
such Bonds and shall be delivered to the Trustee when such
payment, redemption or purchase is made. All Bonds
cancelled under any of the provisions of this Indenture
shall be destroyed, in accordance with applicable law, by
the Trustee, which shall execute a certificate in
triplicate describing the Bonds so destroyed, and one
executed certificate shall be filed with the Issuer and one
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with the Company and the other executed certificate shall
be retained by the Trustee.
SECTION 2.10. Additional Bonds. Additional Bonds may
be issued under and secured by this Indenture at one time
or from time to time, in addition to the First Series 1996
Bonds and, subject to the conditions hereinafter provided
in this Section 2.10, for the purpose of providing funds to
pay the Cost of Construction, to the extent that such Cost
exceeds the amounts theretofore drawn and available to be
drawn from the Construction Fund, as well as for the
purpose of providing funds for refunding any of the Bonds
then outstanding of any series, including the payment of
any redemption premium thereon, interest to accrue to the
selected redemption date, any serial maturities to become
due prior to the selected redemption date and any expenses
in connection with such refunding. Before any Additional
Bonds shall be issued under the provisions of this
Section 2.10, the Issuer shall adopt a resolution
authorizing the issuance of such Additional Bonds, fixing
the amount thereof and describing in brief and general
terms the purpose or purposes for which such Additional
Bonds are being issued. Such Additional Bonds shall be
dated, shall be designated, shall be stated to mature on
such date and in such year or years, shall bear interest at
such rate or rates not exceeding the maximum rate then
permitted by law, and may be made redeemable at such times
and prices (subject to the provisions of Article III of
this Indenture), all as may be provided by the resolution
authorizing the issuance of such Additional Bonds. Except
as to any difference in the date, the maturity or
maturities, the rate or rates of interest or the provisions
for redemption by sinking fund or otherwise, such
Additional Bonds shall be on a parity with and shall be
entitled to the same benefit and security of this Indenture
as the First Series 1996 Bonds, except that, anything
herein contained to the contrary notwithstanding, if a
Letter of Credit is in effect securing any series of Bonds,
such Letter of Credit will continue to secure only such
series and will not secure any other series of Bonds.
Such Additional Bonds shall be executed substantially
in the form and manner hereinabove set forth and shall be
deposited with the Trustee for authentication, but before
such Additional Bonds shall be authenticated and delivered
by the Trustee, there shall be delivered to the Trustee the
following:
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(a) a copy, certified by the Secretary or
Assistant Secretary of the Issuer, of the resolution
adopted by the Issuer authorizing the issuance of such
Additional Bonds in the amount specified therein and
providing for the application of the proceeds;
(b) a certificate stating that the Company has
approved the issuance of such Additional Bonds,
including the terms, manner of issuance, purchase price
and disposition of the proceeds thereof, and the terms
and conditions of any supplement to this Indenture
entered into in connection with such Additional Bonds;
and
(c) an executed counterpart of any amendment to
the Agreement.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices.
(a) The First Series 1996 Bonds are non-callable
for redemption except as provided in this Section 3.01.
(b) The Bonds are subject to redemption, at the
direction of the Company, pursuant to the special
redemption provisions of Section 3.06 hereof at the
times specified in the notice given by the Issuer as
provided in Section 3.06 hereof at the principal amount
thereof plus accrued interest to the redemption date
but without premium.
(c) On or prior to the Conversion Date, the First
Series 1996 Bonds are subject to redemption, at the
direction of the Company, in whole on any Business Day
or in part on any Interest Payment Date at a redemption
price equal to the principal amount of the Bonds to be
redeemed plus accrued interest thereon to the
redemption date but without premium.
After the Conversion Date, the First Series 1996 Bonds
are subject to redemption, at the direction of the Company,
in whole or in part at any time on or after the First Day
of Redemption Period as described below, at the principal
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amount thereof, plus a redemption premium (expressed as a
percentage of principal amount) plus accrued interest
thereon to the redemption date (such premium to be paid
only from Available Moneys on deposit in the Bond Fund
other than any moneys paid by the Bank unless any Letter of
Credit then in effect provides for payment of such premium)
as follows:
Length of Fixed
Rate Period
From Conversion Redemption Premium
Date Until Maturity as a Percentage of
(Expressed in First Day of Principal Amount
Years) Redemption Period of Bonds
More than 5 5th 2% declining by 1%
Anniversary of every year after
Conversion Date the 5th Anniver-
sary of the
Conversion Date
until reaching 0%,
and thereafter 0%
5 or less 1st Anniversary of 0%
Conversion Date
(d) The First Series 1996 Bonds are subject to
mandatory and optional redemption pursuant to the sinking
fund provisions of Section 3.07 hereof on January 1, 1997,
and on each January 1 thereafter to and including
January 1, 2025, at the principal amount thereof plus
accrued interest to the redemption date but without
premium.
(e) If less than all of the Bonds of a series shall be
called for redemption, first, any Pledged Bonds shall be
redeemed and, next, the remaining Bonds or portions of
Bonds to be redeemed shall be selected by the Trustee by
lot or in such other random manner as the Trustee in its
discretion may determine.
SECTION 3.02. Notice of Redemption. At least thirty
(30) days (prior to the Conversion Date, fifteen (15) days)
before the redemption date of any Bonds, either in whole or
in part, the Trustee shall cause a notice of any such
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redemption to be mailed, first class postage prepaid, to
all owners of Bonds to be redeemed in whole or in part at
their addresses as they appear on the registration books
hereinabove provided for. Each such notice shall set forth
the date fixed for redemption, the redemption price to be
paid and, if less than all of the Bonds then outstanding
shall be called for redemption, the distinctive numbers and
letters, if any, of such Bonds to be redeemed and, in the
case of Bonds to be redeemed in part only, the portion of
the principal amount thereof to be redeemed. In case any
Bond is to be redeemed in part only, the notice of
redemption which relates to such Bond shall state also that
on or after the redemption date, upon surrender of such
Bond, a new Bond in principal amount equal to the
unredeemed portion of such Bond will be issued. Failure to
mail any notice of redemption, or any defect in any such
notice, shall not affect the proceeding for redemption as
to any owner of Bonds to whom proper notice is mailed.
SECTION 3.03. Effect of Call for Redemption. On the
date so designated for redemption, notice having been given
in the manner and under the conditions hereinabove
provided, the Bonds or portions of Bonds so called for
redemption shall become and be due and payable at the
redemption price provided for redemption for such Bonds or
portions of Bonds on such date, and moneys for payment of
the redemption price and accrued interest to the redemption
date being held by the Trustee in a separate account in the
Bond Fund in trust for the holders of the Bonds or portions
thereof to be redeemed, all as provided in this Indenture,
interest on the Bonds or portions of Bonds so called for
redemption shall cease to accrue, such Bonds or portions of
Bonds shall cease to be entitled to any benefit or security
under this Indenture, and the Holder of such Bonds or
portions of Bonds shall have no rights in respect thereof
except to receive payment of the redemption price thereof
and accrued interest to the redemption date.
SECTION 3.04. Partial Redemption. In case part but
not all of an outstanding Bond shall be selected for
redemption, the owner thereof or his attorney or legal
representative shall present and surrender such Bond to the
Trustee for payment of the principal amount thereof so
called for redemption, and the Issuer shall execute and the
Trustee shall authenticate and deliver to or upon the order
of such owner or his attorney or legal representative,
without charge therefor, for the unredeemed portion of the
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principal amount of the Bond so surrendered, a Bond of the
same series and maturity and having the same terms.
SECTION 3.05. Funds in Trust; Unclaimed Funds. All
moneys which the Trustee shall have withdrawn from the Bond
Fund or shall have received from any other source and set
aside, or deposited with the Paying Agent, for the purpose
of paying any of the Bonds hereby secured, either at the
maturity thereof or upon call for redemption, shall be held
in trust for the respective Holders of such Bonds. But any
moneys which shall be so set aside or deposited by the
Trustee and which shall remain unclaimed by the Holders of
such Bonds for a period of six (6) years after the date on
which such Bonds shall have become due and payable shall
upon request in writing be paid in accordance with Section
6.08 hereof or to such officer, board or body as may then
be entitled by law to receive the same, and thereafter the
Holders of such Bonds shall look only to the Company or to
such officer, board or body, as the case may be, for
payment and then only to the extent of the amount so
received without any interest thereon, and the Trustee, the
Issuer and the Paying Agent shall have no responsibility
with respect to such moneys.
SECTION 3.06. Special Redemption. The Bonds are
subject to redemption in whole at any time upon receipt by
the Trustee and the Issuer of a written notice from the
Company stating that the Company has determined that:
(i) Any federal, state or local body exercising
governmental or judicial authority has taken any action
which results in the imposition of unreasonable burdens
or excessive liabilities with respect to the Project,
or the Company's plant in connection with which the
Project is used, rendering impracticable or
uneconomical the completion of construction or the
operation of either, including, without limitation, the
condemnation or taking by eminent domain of all or
substantially all of the Project or such plant; or
(ii) Changes in the economic availability of raw
materials, operating supplies or facilities or
technological or other changes have made the continued
operation of such plant as an efficient generating
facility uneconomical; or
(iii) The Project or such plant has been damaged
or destroyed to such an extent that it is not
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practicable or desirable to rebuild, repair or restore
the Project or such plant.
If the Issuer shall have received such notice by the
Company, the Issuer, upon request of the Company, shall
give written notice to the Trustee directing the Trustee to
take all action necessary to redeem the outstanding Bonds
in whole and on a date specified in such notice, which date
shall be not less than forty-five (45) (prior to the
Conversion Date, thirty (30)) nor more than ninety (90)
days from the date the notice is received by the Trustee.
SECTION 3.07. Sinking Fund. As and for a sinking fund
for the redemption of the First Series 1996 Bonds, the
Issuer shall redeem on January 1, 1997, and on each
succeeding January 1 to and including January 1, 2025, the
following principal amounts of such Bonds:
January 1, Principal January 1, Principal
of the year Amount of the year Amount
1997 $ 2012 $
1998 $ 2013 $
1999 $ 2014 $
2000 $ 2015 $
2001 $ 2016 $
2002 $ 2017 $
2003 $ 2018 $
2004 $ 2019 $
2005 $ 2020 $
2006 $ 2021 $
2007 $ 2022 $
2008 $ 2023 $
2009 $ 2024 $
2010 $ 2025 $
2011 $
The remaining $____________ principal amount of First
Series 1996 Bonds is scheduled to mature on January 1,
2026.
The Issuer shall have the option, exercisable through
(or at the direction of) the Company, to redeem on each
January 1 as aforesaid an additional principal amount of
the First Series 1996 Bonds not exceeding the principal
amount thereof required to be redeemed on such January 1
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pursuant to this Section 3.07. Such option, which shall be
non-cumulative, shall be exercised with respect to any
sinking fund redemption date by specifying the additional
principal amount of the First Series 1996 Bonds so to be
redeemed in the certificate furnished to the Trustee with
respect to such sinking fund redemption date pursuant to
the provisions of the second following paragraph.
On or before the forty-fifth day (prior to the
Conversion Date, the thirtieth day) prior to each of the
sinking fund redemption dates set forth above, the Trustee
shall proceed to select for redemption (by lot or in such
other random manner as the Trustee in its discretion may
determine) from all the First Series 1996 Bonds outstanding
a principal amount of such Bonds equal to the aggregate
principal amount of such Bonds to be redeemed for the
sinking fund redemption, and shall call such Bonds for
redemption on the next January 1 and give notice of such
call in accordance with Section 3.02 hereof.
The Issuer may at any time and from time to time,
through (or at the direction of) the Company, deliver to
the Trustee (i) cash, with instructions to purchase and
cancel First Series 1996 Bonds, or (ii) for cancellation
First Series 1996 Bonds in any aggregate principal amount.
On or before the fiftieth day (prior to the Conversion
Date, the thirty-fifth day) next preceding each of the
sinking fund redemption dates set forth above, the Issuer,
through (or at the direction of) the Company, shall furnish
the Trustee with its certificate (i) specifying the
aggregate principal amount, if any, of First Series 1996
Bonds which prior to said date have been redeemed or
purchased by the Trustee (otherwise than through the
operation of the mandatory sinking fund) and cancelled or
delivered by the Issuer or the Company to the Trustee for
cancellation, (ii) specifying the aggregate principal
amount of such First Series 1996 Bonds not theretofore
applied as a credit against any sinking fund redemption
obligation and (iii) specifying the amount, if any, of such
First Series 1996 Bonds which the Trustee shall apply as a
credit in respect of the sinking fund redemption obligation
next succeeding the date of such certificate. Each First
Series 1996 Bond so credited shall be credited by the
Trustee at 100% of the principal amount thereof; any excess
over the amount required for such current sinking fund
redemption obligation may be credited against such future
sinking fund redemption obligations, in any order, as the
Issuer, through (or at the direction of) the Company, may specify.
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ARTICLE IV
CONVERSION OF INTEREST RATE;
DEMAND PURCHASE OPTION
SECTION 4.01. Conversion of Interest Rate on Optional
Conversion Date. The interest rate on the First Series
1996 Bonds shall be converted from the Adjustable Rate to
the Fixed Rate upon the exercise by the Company of the
Conversion Option, and the First Series 1996 Bonds shall be
subject to mandatory tender for purchase by the owners
thereof on the Optional Conversion Date. To exercise the
Conversion Option, the Company shall deliver or mail by
first class mail a notice to the Trustee with respect to
the determination of the Company to convert the interest
rate on the First Series 1996 Bonds from the Adjustable
Rate to the Fixed Rate, which notice shall be delivered to
the Trustee at least thirty (30) but not more than
forty-five (45) days prior to the Optional Conversion Date.
The Trustee shall then deliver or mail by first class mail
a notice at least twenty (20) days but not more than thirty
(30) days prior to the Optional Conversion Date to the
owner of each First Series 1996 Bond at the address shown
on the registration books of the Issuer. Any notice given
by the Trustee as provided in this Section shall be
conclusively presumed to have been duly given, whether or
not the owner receives the notice. Said notice shall state
in substance the following:
1. The Conversion Date.
2. That all owners of Bonds are required to
tender their Bonds to the Tender Agent for purchase on
the Conversion Date.
All owners of Bonds shall be required to tender their
Bonds to the Tender Agent on or prior to the Optional
Conversion Date for purchase at the Purchase Price, and any
such Bonds not so tendered on the Optional Conversion Date
("Untendered Bonds"), for which there has been irrevocably
deposited in trust with the Tender Agent an amount of
moneys sufficient to pay the Purchase Price of the
Untendered Bonds, shall be deemed to have been purchased
pursuant to this Section 4.01. IN THE EVENT OF A FAILURE
BY AN OWNER OF BONDS TO TENDER ITS BONDS ON OR PRIOR TO THE
OPTIONAL CONVERSION DATE, SAID OWNER SHALL NOT BE ENTITLED
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TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUBSEQUENT
TO THE OPTIONAL CONVERSION DATE) OTHER THAN THE PURCHASE
PRICE FOR SUCH UNTENDERED BONDS, AND ANY UNTENDERED BONDS
SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF THIS
INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE
PURCHASE PRICE THEREFOR.
SECTION 4.02. Mandatory Purchase Date. The First
Series 1996 Bonds shall be subject to mandatory tender for
purchase by the owners thereof on the Mandatory Purchase
Date. The Trustee shall deliver or mail by first class
mail a notice at least twenty (20) days but not more than
thirty (30) days prior to the Mandatory Purchase Date to
the owner of each Bond at the address shown on the
registration books of the Issuer. Any notice given as
provided in this Section shall be conclusively presumed to
have been duly given, whether or not the owner receives the
notice. Said notice shall state in substance the
following:
1. The Mandatory Purchase Date.
2. That all owners of Bonds are required to
tender their Bonds to the Tender Agent for purchase on
the Mandatory Purchase Date, regardless of whether any
Substitute Letter of Credit is subsequently delivered
to the Trustee.
All owners of Bonds shall be required to tender their
Bonds to the Tender Agent on or prior to the Mandatory
Purchase Date for purchase at the Purchase Price, and any
such Bonds not so tendered on the Mandatory Purchase Date
("Untendered Bonds"), for which there have been irrevocably
deposited in trust with the Tender Agent an amount of
moneys sufficient to pay the Purchase Price of the
Untendered Bonds, shall be deemed to have been purchased
pursuant to this Section 4.02. IN THE EVENT OF A FAILURE
BY AN OWNER OF BONDS TO TENDER ITS BONDS ON OR PRIOR TO THE
MANDATORY PURCHASE DATE, SAID OWNER SHALL NOT BE ENTITLED
TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUBSEQUENT
TO THE MANDATORY PURCHASE DATE) OTHER THAN THE PURCHASE
PRICE FOR SUCH UNTENDERED BONDS, AND ANY UNTENDERED BONDS
SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF THIS
INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE
PURCHASE PRICE THEREFOR.
SECTION 4.03. Additional Notices. The Trustee shall
provide the Tender Agent with a copy of any notice
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delivered to the owners of the Bonds pursuant to Section
4.01 or 4.02 hereof.
SECTION 4.04. Demand Purchase Option. Any First
Series 1996 Bond bearing interest at the Adjustable Rate
shall be purchased at the Purchase Price from the owner
thereof upon:
(i) delivery by the owner of such Bond to the
Tender Agent at its Principal Office and to the
Remarketing Agent at its Principal Office of a written
or telephonic (promptly confirmed in writing) notice
by 11:00 A.M., Atlanta, Georgia time, on a Business
Day (said notice to be irrevocable and effective upon
receipt) which (1) states the aggregate principal
amount and Bond numbers of the Bonds to be purchased;
and (2) states the date on which such Bonds are to be
purchased, which date shall be a Tender Date not prior
to the seventh (7th) day next succeeding the date of
delivery of such notice and which date shall be prior
to the Conversion Date; and
(ii) delivery to the Tender Agent at its
Principal Office at or prior to 9:30 A.M., Atlanta,
Georgia time, on the Business Day preceding the date
designated for purchase in the notice described in
(i) above of such Bonds to be purchased, endorsed in
blank, and if such Bonds are to be purchased prior to
the next succeeding Interest Payment Date and after
the Record Date in respect thereof, a due bill,
payable to bearer, for interest due on such Interest
Payment Date.
An election by a Holder to exercise the Demand
Purchase Option pursuant to the provisions contained herein
will become ineffective and void if the First Series 1996
Bond described in his notice is not tendered at the times,
in the manner, and with the supporting documents required
by the terms hereof, and any First Series 1996 Bond
delivered to the Tender Agent pursuant to an ineffective
Demand Purchase Option shall be promptly returned to the
registered owner thereof with an explanation by the Tender
Agent of the defect. Notwithstanding the foregoing, a
defective Demand Purchase Option will be accepted if the
Remarketing Agent is, nevertheless, able to remarket such
Bonds on the purchase date and the Trustee and the Tender
Agent are able to comply with the payment requirements
contained herein. If such conditions are met, then the
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First Series 1996 Bond described in the notice shall cease
to bear interest as of such purchase date and shall no
longer be considered to be outstanding under this
Indenture.
SECTION 4.05. Funds for Purchase of Bonds. On the
date First Series 1996 Bonds are to be purchased pursuant
to Section 2.02(c)(ii), 4.01, 4.02 or 4.04 hereof, such
Bonds shall be purchased at the Purchase Price only from
the funds listed below. Subject to the provisions of
Section 6.09(b), funds for the payment of the Purchase
Price shall be derived from the following sources in the
order of priority indicated:
(i) the proceeds of the sale of such Bonds which
have been remarketed by, and which proceeds are on
deposit with, the Remarketing Agent prior to 12:00
Noon, Atlanta, Georgia time, on the Business Day
preceding the date such Bonds are to be purchased
(which proceeds shall be forthwith paid over by the
Remarketing Agent to the Tender Agent with concurrent
notice to the Trustee, if the Trustee is not the
Tender Agent, and the Company of the amount thereof),
to any entity other than the Company or the Issuer, or
any party as to which the Trustee has been notified in
writing is an affiliate of the foregoing;
(ii) any other moneys which constitute Available
Moneys on deposit with the Trustee but which are not
on deposit in the Bond Fund;
(iii) moneys drawn by the Trustee under the
Letter of Credit (if any), which moneys shall be paid
over to the Tender Agent; and
(iv) any other moneys furnished to the Trustee
and available for such purpose, including moneys paid
by the Company pursuant to the Agreement.
SECTION 4.06. Delivery of Purchased Bonds.
(a) Bonds purchased with moneys described in
Section 4.05(i) hereof shall be delivered by the Tender
Agent, at its Principal Office, to or upon the order of the
purchasers thereof.
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(b) Bonds purchased with moneys described in
Section 4.05(ii) hereof shall be delivered to the Trustee
for cancellation.
(c) Bonds purchased with moneys described in
Section 4.05(iii) hereof shall be delivered by the Tender
Agent to the Bank pursuant to the Pledge Agreement.
(d) Bonds purchased with moneys described in
Section 4.05(iv) shall, at the direction of the Company, be
(A) delivered as instructed by the Company or (B) delivered
to the Trustee for cancellation; provided, however, that
any Bonds so purchased after the selection thereof by the
Trustee for redemption shall be delivered to the Trustee
for cancellation.
(e) The Tender Agent shall deliver to the person
to whom the Tender Agent is to deliver such Bonds the due
bills, if any, delivered to the Tender Agent with such
Bonds in accordance with Section 4.04 hereof.
Bonds delivered as provided in this Section shall
be registered in the manner directed by the recipient
thereof.
SECTION 4.07. Delivery of Proceeds of Sale of
Purchased Bonds.
(a) Except in the case of the sale of any
Pledged Bonds, the proceeds of the sale of any Bonds
delivered to the Tender Agent pursuant to Section
2.02(c)(ii), 4.01, 4.02 or 4.04 hereof, to the extent not
required to pay the Purchase Price thereof in accordance
with Section 4.05 hereof, shall be paid to or upon the
order of the Bank, to the extent required to satisfy the
obligations of the Company under the Credit Agreement as
evidenced by a written certificate of an officer of the
Bank delivered to the Trustee, and the balance, if any,
shall be paid to or upon the order of the Company.
(b) In the event the Remarketing Agent shall
have remarketed any Pledged Bonds and the Company shall
have directed the Bank to deliver such Pledged Bonds to the
Tender Agent pursuant to the Credit Agreement, such Bonds
shall be delivered by the Tender Agent in accordance with
Section 4.06(a) hereof and the proceeds of sale of such
Bonds shall be delivered to the Bank; provided that any
(i) premium or (ii) accrued interest in excess of amounts
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then due to the Bank pursuant to the Credit Agreement
received upon the sale of such Bonds shall be delivered by
the Bank to or upon the order of the Company.
SECTION 4.08. Duties of Trustee and Tender Agent with
Respect to Purchase of Bonds.
(a) The Tender Agent shall hold all Bonds
delivered to it pursuant to Section 2.02(c)(ii), 4.01, 4.02
or 4.04 hereof in trust for the benefit of the respective
owners of Bonds which shall have so delivered such Bonds
until moneys representing the Purchase Price of such Bonds
shall have been delivered to or for the account of or to
the order of such owners of Bonds.
(b) The Trustee and the Tender Agent shall hold
all moneys delivered to them pursuant to this Indenture for
the purchase of Bonds in a separate account, in trust for
the benefit of the person or entity which shall have so
delivered such moneys until the Bonds purchased with such
moneys shall have been delivered to or for the account of
such person or entity.
(c) The Tender Agent shall deliver to the
Trustee, the Company, the Bank and the Remarketing Agent a
copy of each notice delivered to it in accordance with
Section 4.04 hereof and, immediately upon the delivery to
it of Bonds in accordance with said Section 4.04, give
telephonic or telegraphic notice to the Company, the
Trustee and the Bank specifying the principal amount of the
Bonds so delivered.
(d) The Trustee shall draw moneys under the
Letter of Credit (if any) in accordance with the terms
thereof to the extent required by Sections 4.05 and 6.09
hereof to provide for timely payment of the Purchase Price
of Bonds.
ARTICLE V
GENERAL COVENANTS
SECTION 5.01. Payment of Principal and Premium, If
Any, and Interest; Limited Obligation. The Issuer
covenants that it will promptly pay the principal of and
premium, if any, and interest on, and the Purchase Price
for, every Bond issued under this Indenture at the place,
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on the dates and in the manner provided herein and in said
Bonds according to the true intent and meaning thereof, but
only from the revenues and receipts specifically pledged
herein for such purposes. Neither the State of Georgia nor
any political subdivision thereof shall be obligated to pay
the principal of the Bonds, or the premium, if any, or
interest thereon or the Purchase Price therefor or other
costs incidental thereto, the same being payable solely
from the revenues and receipts hereinabove referred to.
Neither the faith and credit nor the taxing power of the
State of Georgia or any political subdivision thereof is
pledged to the payment of the principal of the Bonds, or
the premium, if any, or interest thereon, or the Purchase
Price therefor or the other costs incidental thereto.
SECTION 5.02. Performance of Covenants; Issuer. The
Issuer covenants that it will faithfully perform at all
times any and all covenants, undertakings, stipulations and
provisions contained in this Indenture, in any and every
Bond executed, authenticated and delivered hereunder and in
all of its proceedings pertaining hereto. The Issuer
covenants that it is duly authorized under the Constitution
and laws of the State of Georgia, including particularly
and without limitation the Act, to issue the First Series
1996 Bonds authorized hereby and to execute this Indenture,
to assign and pledge the Agreement and the amounts payable
under the Agreement, and to pledge the amounts hereby
pledged in the manner and to the extent herein set forth;
that all action on its part necessary for the issuance of
the First Series 1996 Bonds and the execution and delivery
of this Indenture has been duly and effectively taken; and
that the First Series 1996 Bonds in the hands of the owners
thereof are and will be valid and enforceable obligations
of the Issuer according to the terms thereof and hereof.
SECTION 5.03. Instruments of Further Assurance. The
Issuer covenants that, at the direction and expense of the
Company, it will do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably
require for the better pledging and assigning unto the
Trustee all and singular the rights to payments under the
Agreement and any other income and other moneys pledged
hereby to the payment of the principal of and premium, if
any, and interest on, and the Purchase Price for, the
Bonds. The Issuer further covenants that it will not
create or suffer to be created any lien, encumbrance or
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charge upon its interest in the Project or any part thereof
or the Agreement, if any, except the lien of this
Indenture.
SECTION 5.04. Recordation. The Issuer covenants
that, at the direction and expense of the Company, it will
cause all instruments as may be necessary to perfect and
preserve the security interest created by this Indenture to
be recorded or filed in such manner and in such places as
may be required by law.
SECTION 5.05. Inspection of Project Books. The
Issuer covenants and agrees that all books and documents in
its possession relating to the Project shall at all times
be open to inspection by the Trustee and its duly
authorized agents.
SECTION 5.06. Rights Under Agreement. The Agreement,
a duly executed counterpart of which has been filed with
the Trustee, sets forth the covenants and obligations of
the Issuer and the Company, and reference is hereby made to
the same for a detailed statement of said covenants and
obligations of the Company thereunder; and the Issuer
agrees that the Trustee in its own name or in the name of
the Issuer may enforce all rights of the Issuer and all
obligations of the Company under and pursuant to the
Agreement for and on behalf of the Bondholders, whether or
not the Issuer is in default hereunder.
SECTION 5.07. Designation of Additional Paying
Agents. The Issuer shall cause, at the direction of the
Company, the necessary arrangements to be made through the
Trustee and to be thereafter continued for the designation
of additional Paying Agents and for providing for the
payment of such of the Bonds as shall be presented when due
at the corporate trust office of the Trustee, or its
successor in trust hereunder, or at the principal office of
said additional Paying Agents. All such funds held by said
additional Paying Agents shall be held by each of them in
trust and shall constitute a part of the trust estate and
shall be subject to the security interest created hereby.
SECTION 5.08. Existence of Issuer. The Issuer
covenants that unless otherwise required by law it will at
all times maintain its corporate existence and will duly
procure any necessary renewals and extensions thereof and
will use its best efforts to maintain, preserve and renew
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all the rights, powers, privileges and franchises owned by
it.
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.01. Source of Payment of Bonds. The Bonds
authenticated and delivered hereunder are the obligations
of the Issuer and the Issuer shall make payments hereunder
in respect of the principal of and premium, if any, and
interest on, and the Purchase Price for, such Bonds. Such
Bonds are not general obligations of the Issuer but are
limited obligations payable solely from revenues and
proceeds derived from the Agreement and the Letter of
Credit (if any) and as authorized by the Act and provided
herein.
SECTION 6.02. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be
designated "Savannah Economic Development Authority
Industrial Development Revenue Bonds (Savannah Electric and
Power Company Project) First Series 1996 Bond Fund". The
Trustee shall establish one or more accounts within the
Bond Fund for the purpose of segregating moneys drawn on
any Letter of Credit and other Available Moneys from other
moneys therein, and may establish one or more accounts
within the Bond Fund for other purposes.
SECTION 6.03. Payments into the Bond Fund. There
shall be deposited into the Bond Fund, as and when
received, (i) all payments of the amounts owed by the
Company under the first paragraph of Section 3.2 of the
Agreement; (ii) all other moneys received by the Trustee
under and pursuant to any of the provisions of the
Agreement which are required, or which are accompanied by
directions from the Company that such moneys are, to be
paid into the Bond Fund; and (iii) all moneys drawn by the
Trustee under any Letter of Credit to pay the principal of
or premium, if any, or interest on the Bonds. The Issuer
hereby covenants and agrees that, so long as any of the
First Series 1996 Bonds are outstanding, it will deposit,
or cause to be paid to the Trustee for deposit in the Bond
Fund for its account, sufficient sums from revenues derived
pursuant to the Agreement or the other sources described
herein promptly to meet and pay the principal of and
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premium, if any, and interest on the First Series 1996
Bonds as the same become due and payable; provided,
however, that nothing herein shall be construed as
requiring the Issuer to use any funds or revenues from any
source other than revenues derived pursuant to the
Agreement or the Letter of Credit (if any). The Trustee is
authorized to receive at any time payments or prepayments
from the Company pursuant to the Agreement for deposit in
the Bond Fund.
SECTION 6.04. Use of Moneys in the Bond Fund. Except
as provided in this Indenture, moneys in the Bond Fund
shall be used solely for the payment of the principal of
and premium, if any, and interest on the Bonds. Such
moneys for such payment shall be derived from the following
sources in the order of priority indicated (and, except as
otherwise provided in this Indenture, shall be applied
first to Bonds other than Pledged Bonds):
(i) proceeds of any refunding obligations and
proceeds of the investment thereof which constitute
Available Moneys;
(ii) moneys received by the Trustee pursuant to
the Agreement and proceeds of the investment thereof
which constitute Available Moneys other than moneys
held for the payment of the purchase price of Bonds
required to be purchased pursuant to Article IV;
(iii) moneys drawn by the Trustee under the
Letter of Credit (if any) to pay the principal of and
premium, if any, and interest on the Bonds which
constitute Available Moneys; and
(iv) any other moneys available therefor and
proceeds of the investment thereof.
Upon receipt of a written notice from the Company
pursuant to Section 4.7 of the Agreement and, in the case
of a directed purchase of Bonds, upon the deposit of
Available Moneys or Government Obligations purchased with
Available Moneys in the Bond Fund sufficient, together with
other Available Moneys available therefor in the Bond Fund,
to make the directed purchase of Bonds, the Issuer and the
Trustee covenant and agree to take and cause to be taken
the necessary steps to redeem or purchase such principal
amount of Bonds as specified by the Company in such written
notice; provided, however, that any Available Moneys in the
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Bond Fund may be used on direction of the Company to redeem
a part of the Bonds outstanding and then redeemable or to
purchase Bonds for cancellation so long as the Company is
not in default with respect to any payments required
pursuant to Section 3.2 of the Agreement and to the extent
said Available Moneys are in excess of the amount required
for payment of the Bonds theretofore matured or called for
redemption and interest accrued and payable in respect of
outstanding Bonds.
SECTION 6.05. Custody of the Bond Fund. The Bond
Fund shall be in the custody of the Trustee but in the name
of the Issuer, and the Issuer hereby authorizes and directs
the Trustee to withdraw sufficient funds from the Bond Fund
to pay the principal of and premium, if any, and interest
on the Bonds as the same become due and payable and to make
said funds so withdrawn available to the Paying Agents
hereunder at their principal office, for the purpose of
paying said principal and premium, if any, and interest,
which authorization and direction the Trustee hereby
accepts.
SECTION 6.06. Non-presentment of Bonds. In the event
any Bond shall not be presented for payment when the
principal thereof becomes due, either at maturity or at the
date fixed for redemption thereof, if Available Moneys
sufficient to pay such Bond shall have been deposited in
the Bond Fund or otherwise made available to the Trustee
through deposit therein as provided in Section 6.03, all
liability of the Issuer to the Holder thereof for the
payment of such Bond shall forthwith cease, terminate and
be completely discharged, and thereupon it shall be the
duty of the Trustee to hold such funds within a separate
account in the Bond Fund, subject to the provisions of
Section 3.05 hereof, without liability for interest
thereon, for the benefit of the Holder of such Bond, which
shall thereafter (subject to the provisions of Section 3.05
hereof) be restricted exclusively to such funds for any
claim of whatever nature on his part under this Indenture
or on, or with respect to, said Bond.
SECTION 6.07. Moneys to Be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for
the account of the Bond Fund or the Construction Fund under
any provision of this Indenture shall be held by the
Trustee in trust, and except for moneys deposited with or
paid to the Trustee for the redemption of Bonds, notice of
redemption of which has been duly given, shall, while held
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by the Trustee, constitute part of the trust estate and be
subject to the security interest created hereby.
SECTION 6.08. Repayment to the Company from the Bond
Fund. Any amounts remaining in the Bond Fund (other than
moneys, if any, set aside as provided in Sections 3.03,
3.05, 6.06 and 8.01 hereof), after payment in full of the
Bonds (or provision for payment thereof having been made in
accordance with this Indenture), the fees and expenses of
the Trustee and any additional Paying Agent and all other
amounts required to be paid hereunder, shall be paid (i)
first, to the Bank to the extent of any amounts then due
and payable by the Company to the Bank pursuant to the
Credit Agreement (as certified in writing by the Bank to
the Trustee) and (ii) then to the Company as provided in
Section 6.5 of the Agreement.
SECTION 6.09. Letter of Credit.
(a) The Trustee shall accept any Letter of Credit or
Substitute Letter of Credit that the Company is entitled to
furnish pursuant to Section 3.5 of the Agreement. During
the term of the Letter of Credit, the Trustee shall draw
moneys under the Letter of Credit in accordance with the
terms thereof (x) to the extent moneys described in Section
6.04(i) and (ii) hereof are not available therefor, to pay
when due (whether by reason of maturity, the occurrence of
an Interest Payment Date, redemption, acceleration or
otherwise) the principal of, premium, if any, and interest
on the Bonds, and (y) to the extent moneys described in
Section 4.05(i) and (ii) hereof are not available therefor,
to pay when due the Purchase Price of Bonds. Without
limiting the generality of the foregoing, at such time as
the duration of the Interest Period is either three months
or six months in duration, the Trustee is hereby instructed
to draw upon the Letter of Credit to receive payment on the
first day of each month during such Interest Period,
commencing with the first day of the second month of such
Interest Period (or on the Business Day succeeding the
first day of each such month, in the event such day is not
a Business Day), of an amount equal to the interest on the
Bonds that has accrued during the month for which the
drawing is being submitted, less, with respect to the final
drawing of the Interest Period, investment earnings (if
any) on any previous amounts drawn under the Letter of
Credit, which investment earnings are on deposit in the
Bond Fund; and the Trustee is further hereby instructed
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similarly to draw upon the Letter of Credit in respect of
interest on the Bonds from and after the Conversion Date.
(b) Notwithstanding any provision to the contrary
which may be contained in this Indenture, including,
without limitation, Section 6.09(a), (i) in computing the
amount to be drawn under the Letter of Credit on account of
the payment of the principal or Purchase Price of, or
premium, if any, or interest on the Bonds, the Trustee
shall exclude any such amounts in respect of any Bonds
which are Pledged Bonds on the date such payment is due,
and (ii) amounts drawn by the Trustee under the Letter of
Credit shall not be applied to the payment of the principal
or Purchase Price of, or premium, if any, or interest on,
any Bonds which are Pledged Bonds on the date such payment
is due.
SECTION 6.10. Creation of Construction Fund. There
is hereby created and established with the Trustee a trust
fund to be designated "Savannah Economic Development
Authority Industrial Development Revenue Bonds (Savannah
Electric and Power Company Project) First Series 1996
Construction Fund", which shall be expended in accordance
with the provisions of this Article VI.
SECTION 6.11. Payments into the Construction Fund.
The balance of the proceeds of the sale of the First Series
1996 Bonds by the Issuer, after deducting the amount (if
any) required to be deposited in the Bond Fund pursuant to
Section 2.06, shall be deposited in the Construction Fund.
SECTION 6.12. Disbursements from the Construction
Fund. The Trustee is hereby authorized and directed to
make payments from the Construction Fund to pay the Cost of
Construction, or to reimburse the Company for any Cost of
Construction paid by the Company before or after execution
of the Agreement and delivery of the Bonds, and the Trustee
shall be relieved of all liability with respect to making
payments from the Construction Fund in accordance with this
Section 6.12. The Trustee shall issue its checks for each
disbursement from the Construction Fund upon receipt of a
written requisition by the Company stating with respect to
each disbursement to be made: (i) the requisition number,
(ii) the name and address of the person, firm or
corporation to whom payment is due, (iii) the amount to be
paid, and (iv) that each obligation or portion thereof
which is to be paid has been properly incurred, is a proper
charge against the Construction Fund, and has not been the
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basis of any previous withdrawal from the Construction
Fund. Notwithstanding the foregoing provisions of this
Section 6.12, no such disbursement from the Construction
Fund shall be made if an event of default of which the
Trustee has received notice or is deemed to have notice
pursuant to Section 10.01(h) hereof shall have occurred and
be continuing.
The Trustee shall keep and maintain adequate records
pertaining to the Construction Fund and all disbursements
therefrom; and, after the Project has been completed and a
certificate of payment of all costs has been filed with the
Trustee as provided in Section 6.13 hereof, the Trustee
shall file an accounting thereof with the Issuer and the
Company.
SECTION 6.13. Completion of the Project. The
completion of the Project and payment of all Cost of
Construction shall be evidenced by the filing with the
Trustee of the certificate required by the provisions of
Section 2.3 of the Agreement. All moneys in the
Construction Fund (including moneys earned thereon by
investment thereof) remaining after the Completion Date and
payment, or provision for payment, in full of the Cost of
Construction shall be used by the Trustee, without any
further notice or direction from the Issuer or the Company,
to redeem outstanding Bonds of the same series as the Bonds
from which such moneys were derived in the largest amount
possible at the earliest possible redemption date or dates
at which the redemption price for such Bonds to be redeemed
is 100% of the principal amount thereof, plus accrued
interest to the redemption date, under the terms of the
Bonds, as specified, in the case of the First Series 1996
Bonds, in Section 3.01 hereof, or as specified, in the case
of all other series of Bonds, in this Indenture or the
supplemental indenture under which such Bonds were issued,
the Trustee being hereby directed to give notice of such
redemption in accordance with Section 3.02 hereof not
earlier than forty-five (45) days nor later than thirty
(30) days (prior to the Conversion Date, fifteen (15) days)
prior to said redemption date or dates. Until such notice
of redemption shall have been given, such moneys shall,
should the Company so direct, be (i) paid into the Bond
Fund, or (ii) used for any other purpose which, in the
opinion of nationally recognized counsel experienced on the
subject of municipal bonds and acceptable to the Trustee,
is permissible under then applicable Georgia law; provided,
that amounts approved by the Company shall be retained by
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the Trustee in the Construction Fund for payment of any
Cost of Construction not then due and payable or which is
in dispute, and any balance remaining of such retained
funds after full payment of the Cost of Construction shall
be held and applied, or used as directed by the Company, in
the manner specified in this Section.
In the event the Company shall direct redemption of
the Bonds pursuant to Section 3.06 hereof prior to the
Completion Date, the Trustee shall without further
authorization deposit any balance remaining in the
Construction Fund into the Bond Fund.
ARTICLE VII
INVESTMENTS
SECTION 7.01. Investment of Bond Fund and
Construction Fund Moneys. Any moneys held in the Bond Fund
or the Construction Fund shall be invested and reinvested
by the Trustee, at the request of, and as directed by, the
Company in the obligations specified in Section 7.02
hereof; provided, however, that moneys drawn under any
Letter of Credit shall be invested and reinvested only in
Government Obligations having maturities not more than 30
days from the date of acquisition thereof. Any such
investments shall be held by or under the control of the
Trustee and shall be deemed at all times to be a part of
the Bond Fund or the Construction Fund, as the case may be,
and the interest accruing thereon and any profit realized
from such investments shall be credited to the respective
Fund and any loss resulting from such investments shall be
charged to the respective Fund. The Trustee may make any
and all investments through its own bond or securities
department or the bond or securities department of any
affiliate of the Trustee. The Trustee, upon direction of
the Company, shall sell and reduce to cash a sufficient
amount of such investments of Bond Fund moneys whenever the
cash balance in the Bond Fund is insufficient to pay the
principal of or premium, if any, or interest on the Bonds
when due. The Trustee shall sell and reduce to cash a
sufficient amount of such investments of Construction Fund
moneys whenever the cash balance in the Construction Fund
is insufficient to pay a requisition therefrom when
presented or upon direction of the Company.
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SECTION 7.02. Permitted Investments. Except as
otherwise provided herein, any moneys held in the
Construction Fund shall be invested and reinvested by the
Trustee, at the request of, and as directed by, the
Company, in
(a) Government Obligations;
(b) Bonds and notes of the Federal Land Bank;
(c) Obligations of the Federal Intermediate Credit
Bank;
(d) Obligations of the Federal Bank for Cooperatives;
(e) Bonds and notes of Federal Home Loan Banks;
(f) Negotiable or non-negotiable certificates of
deposit, time deposits or similar banking arrangements,
issued by a bank or trust company (which may be the
commercial banking department of the Trustee or any bank or
trust company under common control with the Trustee) or
savings and loan association which are insured by the
Federal Deposit Insurance Corporation or secured as to
principal by Government Obligations; or
(g) Other investments then permitted by law.
All moneys held by the Tender Agent pursuant to
Section 4.08(b), and all moneys held by the Trustee for the
benefit of the owners of Bonds which have been redeemed or
which have been purchased but not surrendered, shall be
held uninvested by the Tender Agent or Trustee,
respectively. Moneys held in the Bond Fund shall be
invested and reinvested in accordance herewith in
Government Obligations having such maturities as shall be
required in order to assure that moneys are available for
the timely payment of principal and interest on the Bonds.
The Trustee may trade any and all such Government
Obligations through its own bond department. The Trustee
may redeem or sell such Government Obligations as may be
required in order to assure that moneys are available to
comply with the provisions of this Indenture and shall not
in any way be responsible for any loss resulting therefrom.
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ARTICLE VIII
RELEASE OF LIEN
SECTION 8.01. Release of Lien. If the Issuer shall
pay or cause to be paid with Available Moneys to the owner
of any outstanding Bond secured hereby the principal of and
interest and any premium due and payable, and thereafter to
become due and payable, on such Bond or any portion of such
Bond, such Bond or portion thereof shall cease to be
entitled to any lien, benefit or security under this
Indenture and, for purposes of this Indenture, shall be
deemed to have been paid. If the Issuer shall pay or cause
to be paid with Available Moneys to the owners of all the
Bonds the principal thereof and interest and any premium
due and payable and thereafter to become due and payable
thereon, and shall pay or cause to be paid all other sums
payable hereunder by the Issuer, or payable under the
Agreement by the Company, then the right, title and
interest of the Trustee in and to the trust estate under
this Indenture shall thereupon cease, terminate and be
discharged. In such event, the Trustee shall, at the
request of the Issuer or the Company, assign, transfer and
turn over (i) if, at that time, there shall be amounts then
due and payable by the Company to the Bank pursuant to the
Credit Agreement (as certified in writing by the Bank to
the Trustee), to the Bank, or (ii) if no such amounts shall
be so due and payable, to the Company, the trust estate,
including, without limitation, any surplus in the Bond Fund
and any balance remaining in any other fund created under
this Indenture.
All outstanding Bonds shall, prior to the maturity or
redemption date thereof, be deemed to have been paid within
the meaning and with the effect expressed in this Article
VIII when
(a) in the event the Bonds are to be redeemed,
the Trustee shall have given, or the Company shall
have given to the Trustee in form satisfactory to it
irrevocable instruction to give, on a date in
accordance with the provisions of Section 3.02 hereof,
notice of redemption of the Bonds,
(b) all outstanding Bonds then bear interest at
the Fixed Rate or at the Adjustable Rate for Interest
Periods which end on the redemption date or the day
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immediately preceding the maturity date, as the case
may be, and there shall have been deposited with the
Trustee either moneys in an amount which shall be
sufficient, or Government Obligations (i) which shall
not contain provisions permitting the redemption
thereof at the option of the issuer thereof, (ii)
which mature no later than the earlier of (A) the date
fixed for the redemption of the Bonds and (B) the
maturity date, and (iii) the principal of and the
interest on which, when due, and without any regard to
reinvestment thereof, will provide moneys which,
together with the moneys, if any, deposited with or
held by the Trustee, shall be sufficient to pay when
due the principal of and interest and any premium due
and to become due on the Bonds, and any Purchase Price
of Bonds pursuant to Article IV on and prior to the
redemption date or maturity date, as the case may be;
provided, however, that such moneys shall constitute
Available Moneys and that such Government Obligations
shall have been purchased with Available Moneys, and
(c) in the event the Bonds do not mature and are
not to be redeemed within the next succeeding 60 days,
the Company shall have given the Trustee, in form
satisfactory to it, irrevocable instructions to give,
as soon as practicable in the same manner as a notice
of redemption is given pursuant to Section 3.02
hereof, a notice to the owners that the deposit
required by clause (b) above has been made with the
Trustee and that the Bonds are deemed to have been
paid in accordance with this Article VIII and stating
the maturity or redemption date upon which moneys are
to be available for the payment of the principal of
and interest and any premium on the Bonds.
Neither the Government Obligations nor moneys
deposited with the Trustee pursuant to this Article VIII
nor principal or interest payments on any such Government
Obligations shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of
the principal of and interest and any premium on the Bonds;
provided, however, that any cash received from such
principal or interest payments on such Government
Obligations deposited with the Trustee, if not then needed
for such purpose, to the extent practicable, shall, at the
written direction of the Company as to specific
investments, be invested in Government Obligations of the
type and tenor described in clause (b) of the immediately
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preceding paragraph, and interest earned from such
reinvestments shall be paid as received by the Trustee (i)
if, at that time, there shall be amounts then due and
payable by the Company to the Bank pursuant to the Credit
Agreement (as certified in writing by the Bank to the
Trustee), to the Bank, or (ii) if no such amounts shall be
so due and payable, to the Company.
Notwithstanding the foregoing provisions of this
Article VIII, no Bonds then bearing interest at the
Adjustable Rate shall be deemed to have been paid pursuant
to such provisions unless the Company shall have delivered
to the Trustee written evidence from each Rating Agency by
which such Bonds are then rated to the effect that such
deemed payment will not, by itself, result in the reduction
or withdrawal of the then applicable rating(s) of such
Bonds.
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 9.01. Events of Default. If any of the
following events occur, it is hereby defined and declared
to be and to constitute an "event of default":
(a) default in the payment when due of any
interest on any Bond; or
(b) default in the payment when due of the
principal of, or premium, if any, on any Bond, whether
at the stated maturity thereof, or upon proceedings
for redemption thereof, or upon the maturity thereof
by declaration; or
(c) default in the payment of the Purchase Price
of any Bond required to be purchased hereunder when
and as the same shall become due; or
(d) if no Letter of Credit is in effect, default
in the performance or observance of any other of the
covenants, agreements or conditions on the part of the
Issuer in this Indenture or in the Bonds, and
continuance thereof for the period after notice
specified in Section 9.13 hereof; or
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(e) the occurrence of an "Event of Default"
under Section 5.1 of the Agreement; or
(f) if a Letter of Credit is in effect, the
Trustee shall have received a written notice from the
Bank of the occurrence and continuance of an Event of
Default as defined in the Credit Agreement, which
notice states that it is intended to constitute notice
of an event of default within the meaning of this
Section; or
(g) if a Letter of Credit is in effect, the
Trustee shall have received, within 10 Business Days
following a payment under the Letter of Credit in
respect of interest on the Bonds, written notice from
the Bank that an Event of Default under the Credit
Agreement has occurred and is continuing.
SECTION 9.02. Acceleration. Upon (i) the occurrence
of an event of default described in Section 9.01(f) or (g)
hereof, the Trustee shall, or (ii) the occurrence and
continuance of any other event of default, the Trustee may,
and upon the written request of the Holders of not less
than 25% in aggregate principal amount of Bonds then
outstanding shall, by notice in writing delivered to the
Issuer and the Company, declare the principal of all Bonds
then outstanding and the interest accrued thereon
immediately due and payable; and such principal and
interest shall thereupon become and be immediately due and
payable. In the event of any such declaration, the Trustee
shall give notice thereof to the Tender Agent and the
Remarketing Agent and the Trustee shall immediately draw
upon or demand payment under the Letter of Credit, if any.
Interest on the Bonds shall immediately cease to accrue on
the date of any such declaration.
The provisions of the immediately preceding paragraph
are subject, when no Letter of Credit shall be in effect,
to the condition that if, after the principal of the Bonds
has been so declared to be due and payable, all arrears of
interest and interest on overdue installments of interest
(if lawful) at the rate per annum borne by the Bonds on the
date of such declaration and the principal and premium, if
any, on all Bonds then outstanding which shall have become
due and payable otherwise than by acceleration and all
other sums payable under this Indenture or upon the Bonds,
except the principal of, and interest on, the Bonds which
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by such declaration shall have become due and payable, are
paid by the Issuer, and the Issuer also performs all other
things in respect of which it may have been in default
hereunder and pays the reasonable charges of the Trustee,
the Bondholders and any trustee appointed under law,
including the Trustee's reasonable attorneys' fees and
expenses, then, and in every such case, the Trustee shall
annul such declaration and its consequences, and such
annulment shall be binding upon all Holders of Bonds issued
hereunder; but no such annulment shall extend to or affect
any subsequent default or impair any right or remedy
consequent thereon.
The provisions of the second preceding paragraph are
further subject to the condition that (i) if an event of
default described in Section 9.01(f) or (g) hereof shall
have occurred and the Trustee shall thereafter have
received written notice from the Bank that the notice which
caused the occurrence of such event of default shall have
been withdrawn and (ii) if a drawing under the Letter of
Credit shall have been made in respect of such event of
default and the Letter of Credit shall have been reinstated
to an amount not less than the principal amount of the
Bonds outstanding plus such additional amount required
pursuant to this Indenture, as confirmed in writing to the
Trustee by the Bank, then, and in every such case, the
Trustee shall annul such declaration and its consequences,
and such annulment shall be binding upon all Holders of
Bonds issued hereunder; but no such annulment shall extend
to or affect any subsequent default or impair any right or
remedy consequent thereon.
The Trustee shall forward a copy of any such annulment
notice pursuant to this Section to the Issuer, the Company,
the Remarketing Agent and the Tender Agent (and, if notice
of the declaration shall have been given to the
Bondholders, to the Bondholders).
SECTION 9.03. Other Remedies. If any event of
default occurs and is continuing, except as otherwise
provided in Section 9.02 or 9.12 hereof, the Trustee,
before or after declaring the principal of the Bonds
immediately due and payable, may enforce each and every
right granted to it under the Agreement and any supplements
or amendments thereto for the benefit of the Bondholders.
In exercising such rights and the rights given the Trustee
under this Article IX, the Trustee shall take such action
as, in the judgment of the Trustee applying the standards
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described in Section 10.01(a) hereof, would best serve the
interests of the Bondholders.
SECTION 9.04. Legal Proceedings by Trustee. If any
event of default has occurred and is continuing, the
Trustee in its discretion may, and upon the written request
of the Holders of not less than 25% in principal amount of
all Bonds then outstanding and receipt of indemnity to its
satisfaction shall, in its own name:
(a) by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the Bondholders,
including the right to require the Issuer to enforce any
rights under the Agreement and to require the Issuer to
carry out any other provisions of this Indenture for the
benefit of the Bondholders and to perform its duties under
the Act;
(b) bring suit upon the Bonds, the Agreement or the
Letter of Credit (if any);
(c) by action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for
the Bondholders; or
(d) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the Bondholders.
No remedy conferred upon or reserved to the Trustee or
to the Bondholders by the terms of this Indenture is
intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in
addition to any other remedy given to the Trustee or to the
Bondholders hereunder or now or hereafter existing at law
or in equity or by statute.
No delay or omission to exercise any right or power
accruing upon any default or event of default shall impair
any such right or power or shall be construed to be a
waiver of any such default or event of default or
acquiescence therein; and every such right and power may be
exercised from time to time as often as may be deemed
expedient.
No waiver of any default or event of default
hereunder, whether by the Trustee or by the Bondholders,
shall extend to or shall affect any subsequent default or
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event of default or shall impair any rights or remedies
consequent thereon.
SECTION 9.05. Right of Bondholders to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding, the Holders of a majority in aggregate
principal amount of Bonds then outstanding shall have the
right, at any time, by an instrument or instruments in
writing executed and delivered to the Trustee, to direct
the method and place of conducting all proceedings to be
taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder; provided, that
such direction shall not be otherwise than in accordance
with the provisions of law or of this Indenture.
SECTION 9.06. Appointment of Receivers. Upon the
occurrence and continuance of an event of default, and upon
the filing of a suit or other commencement of judicial
proceedings to enforce the rights of the Trustee and of the
Bondholders under this Indenture, the Trustee shall be
entitled as a matter of right to the appointment of a
receiver or receivers of the trust estate under this
Indenture with such powers as the court making such
appointment shall confer.
The Trustee hereby assigns to the Bank all its rights
to contest or otherwise dispute in its name, place and
stead and at the Bank's sole election and cost any claim of
preferential transfer made by a bankruptcy trustee, debtor-
in-possession or other similar official with respect to any
amount paid to the Trustee by or on behalf of the Company
or the Issuer to be applied to principal of, premium or
interest on the Bonds, to the extent of payments made to
the Trustee pursuant to a drawing under the Letter of
Credit. The Trustee shall cooperate with and assist the
Bank in any such contest or dispute as the Bank may
reasonably request; provided, however, that the Bank shall
reimburse the Trustee for its reasonable costs incurred in
connection with providing such cooperation and assistance.
The Trustee shall give the Bank prompt notice of any claim
of preferential transfer of which it has knowledge. The
foregoing assignment shall not be deemed to confer upon the
Bank any right to contest or otherwise dispute any claim of
preferential transfer with respect to any amount as to
which there has been no drawing under the Letter of Credit.
The assignment set forth above shall in no event be
effective until the Bank shall have first furnished to the
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Trustee an agreement to indemnify the Trustee and the
Holders of the Bonds against any claim, liability or damage
which they might suffer by reason of any such contest or
dispute.
SECTION 9.07. Waiver. Upon the occurrence and
continuance of an event of default, to the extent that such
rights may then lawfully be waived, neither the Issuer, nor
the State of Georgia, nor any political subdivision
thereof, nor anyone claiming through or under any of them,
shall set up, claim, or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws
now or hereafter in force, in order to prevent or hinder
the enforcement of this Indenture, but the Issuer, for
itself and all who may claim through or under it, hereby
waives, to the extent that it lawfully may do so, the
benefit of all such laws.
SECTION 9.08. Application of Moneys. All moneys
received by the Trustee pursuant to any right given or
action taken under the provisions of this Article IX shall,
after payment of the costs and expenses of the proceedings
resulting in the collection of such moneys and of the
expenses, liabilities and advances incurred or made by the
Trustee, be deposited in the Bond Fund and all moneys
(except moneys held in separate accounts by the Trustee
pursuant to Sections 3.03, 3.05 and 6.06 hereof) in the
Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all
such moneys shall be applied:
FIRST: To the payment to the persons entitled
thereto of all installments of interest then due on
the Bonds, in the order of the maturity of the
installments of such interest and, if the amount
available shall not be sufficient to pay in full any
particular installment, then to the payment ratably,
according to the amounts due on such installment, to
the persons entitled thereto, without any
discrimination or privilege; and
SECOND: To the payment to the persons entitled
thereto of the unpaid principal of and premium, if
any, on any of the Bonds which shall have become due
(other than Bonds matured or called for redemption for
the payment of which moneys are held pursuant to the
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provisions of this Indenture), in the order of their
due dates, with interest on such Bonds from the
respective dates upon which they became due and, if
the amount available shall not be sufficient to pay in
full Bonds due on any particular date, together with
such interest, then to the payment ratably,
according to the amount of principal due on such date,
to the persons entitled thereto without any
discrimination or privilege.
(b) If the principal of all the Bonds shall have
become due or shall have been declared due and payable, all
such moneys shall be applied to the payment of the
principal and interest then due upon the Bonds, without
preference or priority of principal over interest or of
interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over
any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the
provisions of this Article IX then, subject to the
provisions of subsection (b) of this Section 9.08 in the
event that the principal of all the Bonds shall later
become due or be declared due and payable, the moneys shall
be applied in accordance with the provisions of subsection
(a) of this Section 9.08.
Whenever moneys are to be applied pursuant to the
provisions of this Section 9.08, such moneys shall be
applied at such times, and from time to time, as the
Trustee shall determine, having due regard to the amount of
such moneys available for application and the likelihood of
additional moneys becoming available for such application
in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an Interest
Payment Date unless it shall deem another date more
suitable) upon which such application is to be made and
upon such date interest on the amounts of principal to be
paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the
deposit with it of any such moneys and of the fixing of any
such date, and shall not be required to make payment to the
Holder of any Bond until such Bond shall be presented to
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the Trustee for appropriate endorsement or for cancellation
if fully paid.
Notwithstanding anything in this Section 9.08 to the
contrary, moneys received by the Trustee from drawings
under a Letter of Credit shall be applied only to the
payment of the Purchase Price or the principal of and
premium, if any, and interest on the series of Bonds
secured by such Letter of Credit, other than Bonds held by
the Company or Pledged Bonds.
Whenever all principal of and premium, if any, and
interest on all Bonds have been paid under the provisions
of this Section 9.08 and all expenses and charges of the
Trustee, the Tender Agent and any paying agents have been
paid, any balance remaining in the Bond Fund shall be paid
to the Bank or the Company as provided in Section 6.08
hereof.
SECTION 9.09. Remedies Vested in Trustee. All rights
of action (including the right to file proof of claims)
under this Indenture or under any of the Bonds may be
enforced by the Trustee without the possession of any of
the Bonds or the production thereof in any trial or
proceedings relating thereto; and any such suit or
proceeding instituted by the Trustee shall be brought in
its name as Trustee without the necessity of joining as
plaintiffs or defendants any Holders of the Bonds; and any
recovery of judgment shall be for the equal and ratable
benefit of the Holders of the outstanding Bonds.
SECTION 9.10. Rights and Remedies of Bondholders. No
Holder of any Bond shall have any right to institute any
suit, action or proceeding in equity or at law for the
enforcement of this Indenture or for the execution of any
trust hereof or for the appointment of a receiver or any
other remedy hereunder, unless (i) a default has occurred
of which the Trustee has been notified as provided in
Section 10.01(h) hereof, or of which by said subsection it
is deemed to have notice, or unless also (ii) such default
shall have become an event of default and the Holders of
not less than 25% in aggregate principal amount of Bonds
then outstanding shall have made written request to the
Trustee and shall have offered it reasonable opportunity
either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in
its own name, or unless also (iii) they have offered to the
Trustee indemnity as provided in Section 10.01(l) hereof,
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or unless (iv) the Trustee shall thereafter fail or refuse
to exercise the powers hereinbefore granted, or to
institute such action, suit or proceeding in its own name;
and such notification, request and offer of indemnity are
hereby declared in every case at the option of the Trustee
to be conditions precedent to the execution of the powers
and trusts of this Indenture, and to any action or cause of
action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy
hereunder; it being understood and intended that no one or
more Holders of the Bonds shall have any right in any
manner whatsoever to affect, disturb or prejudice the lien
of this Indenture by its, his or their action or to enforce
any right hereunder except in the manner herein provided,
and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein
provided and for the equal and ratable benefit of the
Holders of all Bonds then outstanding. Nothing in this
Indenture contained shall, however, affect or impair the
right of any Bondholder to enforce the payment of the
principal of and premium, if any, and interest on any Bond
at and after the maturity thereof, or the obligation of the
Issuer to pay the principal of and premium, if any, and
interest on each of the Bonds issued hereunder to the
respective holders thereof at the time and place, from the
source and in the manner in the Bonds expressed.
SECTION 9.11. Termination of Proceedings. In case
the Trustee shall have proceeded to enforce any right under
this Indenture by the appointment of a receiver, or
otherwise, and such proceedings shall have been continued
or abandoned for any reason, or shall have been determined
adversely, then and in every such case the Issuer and the
Trustee shall be restored to their former positions and
rights hereunder, and all rights, remedies and powers of
the Trustee shall continue as if no such proceedings had
been taken.
SECTION 9.12. Waivers of Events of Default. The
Trustee may in its discretion waive any event of default
hereunder (other than an event of default described in
Section 9.01(f) or (g) hereof) and its consequences and
rescind any declaration of maturity of principal, and shall
do so upon the written request of the Holders of (a) not
less than two-thirds in aggregate principal amount of all
the Bonds then outstanding in respect of which default in
the payment of principal and/or interest exists, or (b) at
least a majority in aggregate principal amount of all Bonds
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then outstanding in the case of any other default;
provided, however, that there shall not be waived (i) any
event of default in the payment of the principal of any
outstanding Bonds when due or (ii) any default in the
payment when due of the interest on any such Bonds unless
prior to such waiver or rescission, all arrears of
interest, with interest (to the extent permitted by law) at
the rate borne by the Bonds in respect of which such
default shall have occurred on overdue installments of
interest or all arrears of payments of principal when due,
as the case may be, and all expenses of the Trustee in
connection with such default shall have been paid or
provided for, and in case of any such waiver or rescission,
or in the case any proceeding taken by the Trustee on
account of any such default shall have been discontinued or
abandoned or determined adversely, then and in every such
case the Issuer, the Trustee and the Bondholders shall be
restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend
to any subsequent or other default, or impair any right
consequent thereon.
SECTION 9.13. Notice of Default under Section
9.01(d); Opportunity of Issuer and the Company to Cure Such
Default. Anything herein to the contrary notwithstanding,
no default under Section 9.01(d) hereof shall constitute an
event of default until actual notice of such default by
registered or certified mail shall be given to the Issuer
and the Company by the Trustee or by the Holder or Holders
of not less than 25% in aggregate principal amount of all
Bonds outstanding and the Issuer and the Company shall have
had sixty days after receipt of such notice to correct said
default or cause said default to be corrected within the
applicable period; provided, however, if said default be
such that it cannot be corrected within the applicable
period, it shall not constitute an event of default if
corrective action is instituted by the Issuer or the
Company within the applicable period and diligently pursued
until the default is corrected.
With regard to any alleged default concerning which
notice is given to the Issuer and the Company under the
provisions of this Section 9.13, the Issuer hereby grants
the Company full authority for the account of the Issuer to
perform any covenant or obligation alleged in said notice
to constitute a default, in the name and stead of the
Issuer with full power to do any and all things and acts to
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the same extent that the Issuer could do and perform any
such things and acts and with power of substitution.
In the event that the Trustee fails to receive any
payment when due under the Agreement, the Trustee shall
immediately give written notice to the Company and the Bank
specifying such failure.
SECTION 9.14. References to Bank. Anything contained
in this Indenture to the contrary notwithstanding, (i)
prior to the delivery to the Trustee of any Letter of
Credit and (ii) after such delivery, after the expiration
or termination of the Letter of Credit, and after all
obligations owed to the Bank pursuant to the Credit
Agreement have been paid in full or discharged as evidenced
by written notice of the Bank to the Trustee, all
references to the Bank contained herein shall be null and
void and of no force or effect.
ARTICLE X
THE TRUSTEE, THE TENDER AGENT
AND THE REMARKETING AGENT
SECTION 10.01. Acceptance of the Trusts. The Trustee
hereby accepts the trusts imposed upon it by this
Indenture, and agrees to perform said trusts, but only upon
and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any
event of default and after the curing or waiver of all
events of default which may have occurred, undertakes
to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an
event of default has occurred (which has not been
cured or waived), 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 enforcement of a corporate
indenture.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or
through attorneys, agents, receivers or employees
selected by it with reasonable care and the Trustee
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shall not be responsible for the conduct of such
attorneys, agents, receivers or employees, if selected
with reasonable care, and shall be entitled to advice
of counsel concerning all matters relating to the
trusts hereof and the duties hereunder, and may in all
cases pay such reasonable compensation to all such
attorneys, agents, receivers and employees as may
reasonably be employed in connection with the trusts
hereof. The Trustee may act upon the opinion or
advice of any attorney (who may be the attorney or
attorneys for the Issuer or the Company), approved by
the Trustee in the exercise of reasonable care. The
Trustee shall not be responsible for any loss or
damage resulting from any action or inaction in good
faith in reliance upon such opinion or advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to
the certificate of the Trustee endorsed on the Bonds),
or for the recording or re-recording, filing or
re-filing of this Indenture, or any other instrument
required by this Indenture to secure the Bonds, or for
insuring the Project or collecting any insurance
moneys, or for validity of the execution by the Issuer
of this Indenture or of any supplements hereto or
instruments of further assurance, or for the
sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby. The
Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants,
conditions or agreements on the part of the Company
under the Agreement except as hereinafter set forth;
but the Trustee may require of the Issuer and the
Company full information and advice as to the
performance of the aforesaid covenants, conditions and
agreements. The Trustee shall have no obligation to
perform any of the duties of the Issuer under the
Agreement.
(d) The Trustee shall not be accountable for the
use of any Bonds authenticated or delivered hereunder.
The Trustee may become the owner of Bonds secured
hereby with the same rights which it would have if not
the Trustee. To the extent permitted by law, the
Trustee may also receive tenders and purchase in good
faith Bonds from itself, including any department,
affiliate or subsidiary, with like effect as if it
were not the Trustee.
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(e) The Trustee shall be protected in acting
upon any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper or document
believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons.
Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of
any person who at the time of making such request or
giving such authority or consent is the owner of any
Bond, shall be conclusive and binding upon all future
owners of the same Bond and upon owners of Bonds
issued in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any
fact or as to the sufficiency or validity of any
instrument, paper or proceeding, the Trustee shall be
entitled to rely upon a certificate signed by the
Issuer or the Company as sufficient evidence of the
facts therein contained; and prior to the occurrence
of a default of which the Trustee has been notified as
provided in subsection (h) of this Section 10.01, or
of which by said subsection it is deemed to have
notice, the Trustee shall also be at liberty to accept
a similar certificate to the effect that any
particular dealing, transaction or action is necessary
or expedient, but may at its discretion secure such
further evidence deemed necessary or advisable, but
shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Secretary or
Assistant Secretary of the Issuer under the Issuer's
seal to the effect that a resolution in the form
therein set forth has been adopted by the Issuer as
conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do
things enumerated in this Indenture shall not be
construed as a duty, and it shall not be answerable
for other than its negligence or willful default.
(h) The Trustee shall not be required to take
notice or be deemed to have notice of any event of
default hereunder except failure by the Issuer to
cause to be made any of the payments to the Trustee
required to be made by Article V hereof or the
existence of an event of default described in
Section 9.01(d), (f) or (g) hereof, unless the Trustee
shall be specifically notified in writing of such
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event of default by the Issuer or by the Holders of at
least 25% in aggregate principal amount of Bonds then
outstanding; and all notices or other instruments
required by this Indenture to be delivered to the
Trustee must, in order to be effective, be delivered
at the principal corporate trust office of the
Trustee, and in the absence of such notice so
delivered the Trustee may conclusively assume there is
no default except as aforesaid.
(i) At any and all reasonable times the Trustee
and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives shall have
the right fully to inspect any and all parts of the
Project, including all books, papers and records of
the Issuer pertaining to the Project and the Bonds and
to take such memoranda from and in regard thereto as
may be desired.
(j) The Trustee shall not be required to give
any bond or surety in respect of the execution of the
said trusts and powers or otherwise in respect of the
premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right,
but shall not be required, to demand, in respect of
the authentication of any Bonds, the withdrawal of any
cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any
showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof,
in addition to that by the terms hereof required as a
condition of such action by the Trustee, which the
Trustee in its discretion may deem desirable for the
purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any
cash, or the taking of any other action by the
Trustee.
(l) Except upon the occurrence of an event of
default described in Section 9.01(f) or (g) hereof,
before taking any action referred to in Section 9.02,
9.03, 9.04, 9.05, 9.06, 9.10, 9.12 or 10.04 hereunder,
the Trustee may require that a satisfactory indemnity
bond be furnished for the reimbursement of all
expenses to which it may be put and to protect it
against all liability, except liability which is
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adjudicated to have resulted from its negligence or
willful default by reason of any action so taken.
(m) All moneys received by the Trustee or any
Paying Agent shall, until used or applied or invested
as herein provided, be held in trust for the purposes
for which they were received but need not be
segregated from other funds except to the extent
required herein or by law. Neither the Trustee nor
any Paying Agent shall be under any liability for
interest on any moneys received hereunder except such
as may be mutually agreed upon.
(n) The Trustee shall not be deemed to have
notice of the occurrence of an Act of Bankruptcy
unless it shall have been so notified in writing by
the Company or the Issuer.
(o) The Trustee shall not be responsible for
determining the highest lawful rate of interest that
may be borne by the Bonds.
SECTION 10.02. Fees, Charges and Expenses of Trustee.
The Trustee shall be entitled to payment and reimbursement
for reasonable fees for its services rendered hereunder and
all advances, counsel fees and expenses and other expenses
reasonably and necessarily made or incurred by the Trustee
in connection with such services. Upon an event of
default, but only upon an event of default, the Trustee
shall have a first lien, with right of payment prior to
payment on account of principal of and premium, if any, and
interest on any Bond, upon the trust estate hereunder
(excluding the proceeds of any drawing under any Letter of
Credit) for the foregoing fees, charges and expenses
incurred by it.
SECTION 10.03. Notice to Bondholders if an Event of
Default Occurs. If an event of default occurs of which the
Trustee is by Section 10.01(h) hereof required to take
notice or if notice of an event of default be given as in
Section 10.01(h) provided, then the Trustee shall promptly
give written notice thereof by registered or certified mail
to each owner of Bonds then outstanding.
SECTION 10.04. Intervention by Trustee. In any
judicial proceeding to which the Issuer is a party and
which in the opinion of the Trustee and its counsel has a
substantial bearing on the interests of the owners of the
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Bonds, the Trustee may intervene on behalf of the
Bondholders and shall do so if requested in writing by the
owners of at least 25% of the aggregate principal amount of
Bonds then outstanding subject to receipt by the Trustee of
indemnity satisfactory to it against any expenses or
liability it may thereby incur. The rights and obligations
of the Trustee under this Section 10.04 are subject to the
approval of a court of competent jurisdiction.
SECTION 10.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or
merged, or with which it may be consolidated, or to which
it may sell or transfer its trust business and assets as a
whole or substantially as a whole or any corporation or
association resulting from any such conversion, sale,
merger, consolidation or transfer to which it is a party,
ipso facto, shall be and become successor Trustee hereunder
and vested with all of the title to the trust estate and
all the trusts, powers, discretions, immunities, privileges
and all other matters as was its predecessor, without the
execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
SECTION 10.06. Resignation by Trustee. The Trustee
and any successor Trustee may at any time resign from the
trusts hereby created by giving not less than thirty days'
written notice to the Issuer, the Company and the Bank,
served personally or sent by registered or certified mail,
and to each owner of Bonds then outstanding, sent by
registered or certified mail. Such resignation shall not
take effect prior to appointment of a successor Trustee
pursuant to Section 10.08 hereof; provided, however, if a
successor Trustee is not appointed promptly pursuant to
Section 10.08 hereof, the resigning Trustee may petition a
court of competent jurisdiction to appoint a successor.
SECTION 10.07. Removal of Trustee. The Trustee may
be removed at any time, by an instrument or concurrent
instruments in writing delivered to the Trustee and to the
Issuer and the Company, and signed by the owners of a
majority in aggregate principal amount of Bonds then
outstanding. Such removal shall not take effect prior to
the appointment of a successor Trustee pursuant to Section
10.08 hereof.
SECTION 10.08. Appointment of Successor Trustee. In
case the Trustee hereunder shall resign or be removed, or
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be dissolved, or shall be in course of dissolution or
liquidation, or otherwise become incapable of acting
hereunder, or in case it shall be taken under the control
of any public officer or officers, or of a receiver
appointed by a court, a successor shall be appointed by the
Issuer at the direction of the Company. The Issuer shall
cause notice of such appointment to be given in the same
manner as the giving of notices of redemption as set forth
in Section 3.02 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the
owners of a majority in aggregate principal amount of Bonds
then outstanding. Every such successor Trustee appointed
pursuant to the provisions of this Section 10.08 shall be a
trust company or bank in good standing having a reported
capital, surplus and undivided profits of not less than
$25,000,000, if there be such an institution willing,
qualified and able to accept the trusts upon reasonable and
customary terms.
SECTION 10.09. Concerning Any Successor Trustee.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the
Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any
further act, deed or conveyance, shall become fully vested
with all of the estates, properties, rights, powers,
trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of
the Issuer, or of its successor, execute and deliver an
instrument transferring to such successor Trustee all the
estates, properties, rights, powers and trusts of such
predecessor hereunder, and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee
hereunder to its successor. Should any instrument in
writing from the Issuer be required by any successor
Trustee for more fully and certainly vesting in such
successor the estate, rights, powers and duties hereby
vested or intended to be vested in the predecessor, any and
all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. The
resignation of any Trustee and the instrument or
instruments removing any Trustee and appointing a successor
hereunder, together with all other instruments provided for
in this Article X, shall be filed and/or recorded by the
successor Trustee in each recording office where the
Indenture shall have been filed and/or recorded and the
successor Trustee shall bear the cost thereof.
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SECTION 10.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent. In the event of a
change of Trustee, the Trustee which has resigned or been
removed shall cease to be Bond Registrar, custodian of the
Bond Fund and a Paying Agent for principal of and premium,
if any, and interest on the Bonds, and the successor
Trustee shall become such Bond Registrar, custodian and a
Paying Agent.
SECTION 10.11. Trustee and Issuer Required to Accept
Directions and Actions of Company. Whenever, after a
reasonable request by the Company, the Issuer shall fail,
refuse or neglect to give any direction to the Trustee or
to require the Trustee to take any action which the Issuer
is required to have the Trustee take pursuant to the
provisions of the Agreement or this Indenture, the Company
as agent of the Issuer may give any such direction to the
Trustee or require the Trustee to take any such action, and
the Trustee is hereby irrevocably empowered and directed to
accept such direction from the Company as sufficient for
all purposes of this Indenture. The Company shall have the
right as agent of the Issuer to cause the Trustee to comply
with any of the Trustee's obligations under this Indenture
to the same extent that the Issuer is empowered so to do.
Certain actions or failures to act by the Issuer under
this Indenture may create or result in an event of default
under this Indenture and the Company, as agent of the
Issuer, may to the extent permitted by law, perform any and
all acts or take such action as may be necessary for and on
behalf of the Issuer to prevent or correct said event of
default and the Trustee shall take or accept such
performance by the Company as performance by the Issuer in
such event.
The Issuer hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do
all things and perform all acts provided, and to the extent
so provided, by this Section 10.11.
SECTION 10.12. No Transfer of Letter of Credit Held
by the Trustee; Exception. Except as required to effect an
assignment to a successor Trustee, the Trustee shall not
sell, assign or transfer any Letter of Credit, and the
Trustee is authorized to enter into an agreement with the
Company to such effect.
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SECTION 10.13. Filing of Certain Continuation
Statements. From time to time, the Trustee shall duly
file, or cause to be filed, at the expense of the Company,
continuation statements for the purpose of continuing
without lapse the effectiveness of the filing of the
financing statements with respect to the security interest
created by this Indenture in the Agreement, at or prior to
the issuance of the First Series 1996 Bonds and any
Additional Bonds and any previously filed continuation
statements which shall have been filed as herein required.
The Issuer shall sign and deliver to the Trustee or its
designee such continuation statements as may be requested
of it from time to time by the Trustee. Upon the filing of
any such continuation statements, the Trustee shall
immediately notify the Issuer and the Company that the same
has been accomplished.
SECTION 10.14. Tender Agent.
________________________ is hereby appointed by the Issuer
as the initial Tender Agent. The Issuer, at the direction
of the Company, shall appoint any successor Tender Agent
for the Bonds, subject to the conditions set forth in
Section 10.15. The Tender Agent shall designate to the
Issuer and the Trustee its principal office for all
purposes hereof and signify its acceptance of the duties
imposed upon it hereunder by a written instrument of
acceptance delivered to the Issuer and the Trustee under
which the Tender Agent shall agree, particularly:
(i) to hold all sums held by it for the payment of
the principal of, premium, if any, or interest on
the Bonds in trust for the benefit of the Holders
of the Bonds until such sums shall be paid to
such Holders of the Bonds or otherwise disposed
of as herein provided;
(ii) to perform its obligations under this Indenture;
and
(iii) to keep such books and records relating to its
duties as Tender Agent as shall be consistent
with prudent industry practice and to make such
books and records available for inspection by the
Issuer, the Trustee and the Company at all
reasonable times.
The Issuer shall cooperate with the Trustee and the
Company to cause the necessary arrangements to be made and
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to be thereafter continued whereby the Tender Agent shall
be furnished such records and other information, at such
times, as shall be required to enable the Tender Agent to
perform the duties and obligations imposed upon it
hereunder.
No delivery of Bonds to the Tender Agent shall
constitute a redemption of Bonds or any extinguishment of
the debt represented thereby or constitute the Tender Agent
the owner of such Bonds for any purpose whatsoever.
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SECTION 10.15. Qualifications of Tender Agent;
Resignation; Removal.
(a) The Tender Agent shall be the Trustee or a
bank or trust company duly organized under the laws of
the United States of America or any state or territory
thereof, having a combined capital stock, surplus and
undivided profits of at least $15,000,000 and
authorized by law to perform all the duties imposed
upon it by this Indenture. The principal office of
the Tender Agent for all purposes hereof shall be the
office of the Tender Agent at which all deliveries to
it hereunder shall be made and any and all notices and
other communications in connection herewith shall be
delivered. The Tender Agent may at any time resign
and be discharged of its duties and obligations
created by this Indenture by giving at least sixty
(60) days' notice to the Issuer, the Company and the
Trustee. The Tender Agent may be removed at any time,
at the direction of the Company, by an instrument,
signed by the Issuer or the Company, filed with the
Tender Agent and with the Trustee.
(b) In the event of the resignation or removal
of the Tender Agent, the Tender Agent shall deliver
any moneys and any Bonds and any related books and
records held by it in such capacity to its successor
or, if there be no successor, to the Trustee.
(c) In the event that the Tender Agent shall
resign or be removed, or be dissolved, or if the
property or affairs of the Tender Agent shall be taken
under the control of any state or federal court or
administrative body because of bankruptcy or
insolvency, or for any other reason, and the Issuer
shall not have appointed a successor Tender Agent (any
appointment by the Issuer shall be with the prior
written consent of the Company), the Trustee shall
ipso facto be deemed to be the Tender Agent for all
purposes of this Indenture until the appointment by
the Issuer of a successor Tender Agent. If the Bonds
are rated by a Rating Agency, any successor Tender
Agent shall be rated at least Baa3/P-3 or otherwise be
acceptable to such Rating Agency.
SECTION 10.16. Remarketing Agent. At the request of
the Company, SunTrust Bank, Atlanta, is hereby appointed as
the initial Remarketing Agent. The Issuer, at the direction
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of the Company, shall appoint any successor Remarketing
Agent for the Bonds, subject to the conditions set forth in
Section 10.17. Any Remarketing Agent shall designate to
the Issuer and the Trustee its principal office for
purposes hereof, which shall be the office of such
Remarketing Agent at which all notices and other
communications in connection herewith may be delivered to
it, and signify its acceptance of the duties and
obligations imposed upon it hereunder by a written
instrument of acceptance delivered to the Issuer, the
Company, the Trustee and the Bank under which such
Remarketing Agent shall agree particularly (i) to hold all
Bonds delivered to it hereunder in trust for the benefit of
the respective Holders of Bonds that delivered such Bonds
until moneys representing the Purchase Price of such Bonds
are delivered to or for the account of or to the order of
such Holders of Bonds; (ii) to hold all moneys delivered to
it hereunder for the purchase of Bonds in trust for the
benefit of the person or entity that has delivered such
moneys until the Bonds purchased with such moneys are
delivered to or for the account of such person or entity;
and (iii) to keep books and records with respect to its
activities hereunder as shall be consistent with prudent
industry practice and to make such books and records
available for inspection by the Issuer, the Trustee, the
Company and the Bank, if any, at all reasonable times.
SECTION 10.17. Qualifications of Remarketing Agent;
Resignation; Removal. The Remarketing Agent shall be a
financial institution or registered broker/dealer
authorized by law to perform all the duties imposed upon it
by this Indenture. The Remarketing Agent may at any time
resign and be discharged of its duties and obligations
created by this Indenture by giving at least sixty (60)
days' notice to the Issuer, the Company, the Tender Agent,
the Paying Agent, the Trustee and the Bank, if any. The
Remarketing Agent may be removed at any time, upon not less
than thirty (30) days' notice, at the direction of the
Company, by an instrument signed by the Issuer or the
Company and filed with the Remarketing Agent, the Trustee,
the Paying Agent, the Tender Agent and the Bank, if any.
In the event that the Issuer and the Company shall
fail to appoint a successor Remarketing Agent as provided
herein prior to the effective date of the resignation or
removal of the Remarketing Agent, the appointment of a
successor Remarketing Agent may be made by the Bank by an
instrument signed on behalf of the Bank and filed with the
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Remarketing Agent, the Issuer, the Tender Agent, the
Company and the Trustee. Upon receipt by the Trustee of
any such instrument signed on behalf of the Bank appointing
a successor Remarketing Agent, and acceptance of such
appointment by such successor, the Trustee shall provide a
notice of such appointment to the Tender Agent.
SECTION 10.18. Authentication of Bonds. The Tender
Agent shall have full power and authority to act on behalf
of the Trustee and subject to its direction in the
authentication and delivery of Bonds hereunder as fully to
all intents and purposes as though the Tender Agent had
been expressly authorized to authenticate and deliver Bonds
hereunder as Trustee. The Trustee shall either
authenticate the Bonds initially issued and delivered
hereunder or instruct the Tender Agent to authenticate such
Bonds upon satisfaction of the conditions to such
authentication specified in this Indenture. For all
purposes of this Indenture, the authentication and delivery
of the Bonds by the Tender Agent pursuant to this Section
10.18 shall be deemed to be the authentication and delivery
of Bonds by the Trustee.
SECTION 10.19. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity
may serve hereunder as the Trustee, the Bank, the Paying
Agent, the Tender Agent, the Bond Registrar and the
Remarketing Agent and in any other combination of such
capacities, to the extent permitted by law.
ARTICLE XI
INDENTURES SUPPLEMENTAL HERETO
SECTION 11.01. Supplemental Indentures Not Requiring
Consent of Bondholders. The Issuer and the Trustee may,
without the consent of, or notice to, any of the
Bondholders (but with the consent of the Bank, if any),
enter into such indenture or indentures supplemental to
this Indenture as shall not be inconsistent with the terms
and provisions hereof for any one or more of the following
purposes:
(a) to set forth any or all of the matters in
connection with the issuance of Additional Bonds as
provided in Section 2.10 hereof;
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(b) to cure any ambiguity, defect or omission in
this Indenture, or to otherwise amend this Indenture,
in such manner as shall not in the opinion of the
Trustee (in consultation with such professional
advisors as the Trustee deems appropriate) impair the
security hereof or adversely affect the Bondholders;
(c) to grant to or confer upon the Trustee for
the benefit of the Bondholders any additional rights,
remedies, powers or authorities that may lawfully be
granted or conferred upon the Bondholders or the
Trustee;
(d) to add additional covenants of the Issuer,
or to surrender any right or power herein conferred
upon the Issuer;
(e) to subject to this Indenture additional
revenues, properties or collateral;
(f) to modify, amend or supplement this
Indenture or any indenture supplemental hereto in such
manner as to permit the qualification hereof and
thereof under the Trust Indenture Act of 1939 or any
similar federal statute hereafter in effect or to
permit the qualification of the Bonds for sale under
the securities laws of any of the states of the United
States, and, if they so determine, to add to this
Indenture or any indenture supplemental hereto such
other terms, conditions and provisions as may be
permitted by said Trust Indenture Act of 1939 or
similar federal statute;
(g) to evidence the succession of a new Trustee
hereunder;
(h) to satisfy the requirements of The
Depository Trust Company or any other securities
depository selected by the Company or any Rating
Agency then rating the Bonds in order to permit the
optional or mandatory book entry registration of the
Bonds, including, but not limited to, the addition of
grace periods as to the payment of interest due on the
Bonds, changes in the method of payment of amounts due
on the Bonds, the timing or method of notices to
Bondholders or of Bondholders as to the purchase of
Bonds at the option of Bondholders or Bondholders'
elections to retain Bonds, provided that such book
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entry registration is effective commencing on a date
on which the Bonds are subject to mandatory purchase
pursuant to this Indenture;
(i) to permit the Bonds to be converted to
certificateless securities or securities represented
by a master certificate held in trust, ownership of
which, in either case, is evidenced by book entries on
the books of the Bond Registrar, for any period of
time (provided that, notwithstanding the foregoing
provisions of this Section 11.01, notice of any
supplemental indenture pursuant to this Section
11.01(i) shall be given by first class mail, postage
prepaid, to all Bondholders prior to the effectiveness
thereof); and
(j) to authorize different authorized
denominations of the Bonds and to make correlative
amendments and modifications to this Indenture
regarding exchangeability of Bonds of different
authorized denominations and similar amendments and
modifications of a technical nature.
SECTION 11.02. Supplemental Indentures Requiring
Consent of Bondholders. Exclusive of supplemental
indentures covered by Section 11.01 hereof and subject to
the terms and provisions contained in this Section 11.02,
and not otherwise, the holders of at least a majority in
aggregate principal amount of the Bonds then outstanding
shall have the right, from time to time, anything contained
in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such other indenture or indentures supplemental
hereto as shall be deemed necessary and desirable by the
Trustee for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the
terms or provisions contained in this Indenture or in any
indenture supplemental hereto; provided, however, that
nothing in this Section 11.02 contained shall permit, or be
construed as permitting (i) an extension of the maturity or
mandatory purchase or sinking fund redemption dates of the
principal of or the interest on any Bond issued hereunder,
or (ii) a reduction in the principal amount of, or
redemption premium on, any Bond or Bonds or the rate or
rates of interest thereon or the Purchase Price therefor,
or (iii) a privilege or priority of any outstanding Bond or
Bonds over any other outstanding Bond or Bonds, or (iv) a
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reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture.
If at any time the Issuer shall request the Trustee to
enter into any such supplemental indenture for any of the
purposes of this Section 11.02, the Trustee shall, upon
being satisfactorily indemnified with respect to expenses,
cause notice of the proposed execution of such supplemental
indenture to be given in the same manner as the giving of
notices of redemption as set forth in Section 3.02 hereof.
Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies
thereof are on file at the principal corporate trust office
of the Trustee for inspection by all Bondholders. If,
within sixty days or such longer period as shall be
prescribed by the Issuer following the giving of such
notice, the Holders of at least a majority in aggregate
principal amount of the Bonds outstanding at the time of
the execution of any such supplemental indenture shall have
consented to and approved the execution thereof as herein
provided, no Holder of any Bond shall have any right to
object to any of the terms and provisions contained
therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Issuer from executing
the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such
supplemental indenture as in this Section 11.02 permitted
and provided, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and without
the necessity for notation on the outstanding Bonds.
The consent of the Bank (if any) shall be required for
any supplemental indenture pursuant to this Section 11.02.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article XI which affects
the rights of the Company shall not become effective unless
and until the Company shall have consented to the execution
and delivery of such supplemental indenture. In this
regard, the Trustee shall cause notice of the proposed
execution and delivery of any such supplemental indenture
together with a copy of the proposed supplemental indenture
to be mailed by certified or registered mail to the Company
at least fifteen days prior to the giving of notice of the
proposed execution of such supplemental indenture as
provided in this Section 11.02. The Company shall be
deemed to have consented to the execution and delivery of
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any such supplemental indenture if the Trustee does not
receive a letter of protest or objection thereto signed by
or on behalf of the Company on or before 4:30 P.M.,
Atlanta, Georgia time, on the fifteenth day after the
Company's receipt of said notice and a copy of the proposed
supplemental indenture.
SECTION 11.03. Trustee Authorized to Join in
Supplements; Reliance on Counsel. The Trustee is
authorized to join with the Issuer in the execution and
delivery of any supplemental indenture permitted by this
Article XI and in so doing shall be fully protected by an
opinion of counsel, who may be counsel for the Issuer or
the Company, that such supplemental indenture is so
permitted and has been duly authorized by the Issuer and
that all things necessary to make it a valid and binding
supplemental indenture have been done.
ARTICLE XII
AMENDMENT OF AGREEMENT
SECTION 12.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders. The Issuer and the
Trustee shall, without the consent of or notice to the
Bondholders (but with the consent of the Bank, if any),
consent to any amendment, change or modification of the
Agreement which may be entered into pursuant to Section
2.10 hereof or as may be required (i) by the provisions of
the Agreement or this Indenture, (ii) for the purpose of
curing any ambiguity or formal defect or omission, (iii) in
connection with the Project facilities so as to identify
the same more precisely or substitute or add additional
facilities, or (iv) in connection with any other change
therein which, in the judgment of the Trustee, is not to
the prejudice of the Trustee or the Bondholders.
SECTION 12.02. Amendments, Etc., to Agreement
Requiring Consent of Bondholders. Except for the
amendments, changes or modifications as provided in Section
12.01 hereof, neither the Issuer nor the Trustee shall
consent to any other amendment, change or modification of
the Agreement without the giving of notice and the written
approval or consent of the holders of at least a majority
in aggregate principal amount of the Bonds at the time
outstanding given and procured as in this Section 12.02
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provided. If at any time the Issuer and the Company shall
request the consent of the Trustee to any such proposed
amendment, change or modification of the Agreement, the
Trustee shall, upon being satisfactorily indemnified with
respect to expenses, cause notice of such proposed
amendment, change or modification to be given in the same
manner as provided by Section 11.02 hereof with respect to
supplemental indentures. Such notice shall briefly set
forth the nature of such proposed amendment, change or
modification and shall state that copies of the instrument
embodying the same are on file with the Trustee for
inspection by all Bondholders.
The consent of the Bank (if any) shall be required for
any amendment, change or modification pursuant to this
Section 12.02.
SECTION 12.03. Trustee Authorized to Join in
Amendments; Reliance on Counsel. The Trustee is authorized
to join with the Issuer in the execution and delivery of
any amendment permitted by this Article XII and in so doing
shall be fully protected by an opinion of counsel, who may
be counsel for the Issuer or the Company, that such
amendment is so permitted and has been duly authorized by
the Issuer and that all things necessary to make it a valid
and binding agreement have been done.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Consents, Etc., of Bondholders. Any
consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and
executed by the Bondholders may be in any number of
concurrent writings of similar tenor and may be signed or
executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent, if
made in the following manner, shall be sufficient for any
of the purposes of this Indenture, and shall be conclusive
in favor of the Trustee with regard to any action taken by
it under such request or other instrument, namely:
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The fact and date of the execution by any person
of any such writing may be proved by the certificate
of any officer in any jurisdiction who by law has
power to take acknowledgments within such jurisdiction
that the person signing such writing acknowledged
before him the execution thereof, or by an affidavit
of any witness to such execution.
SECTION 13.02. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing
expressed or mentioned in or to be inferred from this
Indenture, or the Bonds, is intended or shall be construed
to give to any person or company other than the Company,
the parties hereto, and the holders of the Bonds, any legal
or equitable right, remedy or claim under or in respect of
this Indenture or any covenants, conditions and provisions
herein contained; this Indenture and all of the covenants,
conditions and provisions hereof are intended to be and are
for the sole and exclusive benefit of the Company, the
parties hereto and the holders of the Bonds as herein
provided.
SECTION 13.03. Severability. If any provision of
this Indenture shall be held or deemed to be or shall, in
fact, be illegal, inoperative or unenforceable, the same
shall not affect any other provision or provisions herein
contained or render the same invalid, inoperative or
unenforceable to any extent whatever.
SECTION 13.04. Notices. Any notice, request,
complaint, demand, communication or other paper shall be
sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid,
or sent by telegram, addressed as follows: if to the
Issuer, at P.O. Box 128, Suite 101, 222 West Oglethorpe
Avenue, Savannah, Georgia 31402, Attention: Chairman; if
to the Trustee, at ______________________________________,
Attention: Corporate Trust Department; and if to the
Company, at 600 Bay Street, East, Savannah, Georgia 31401,
Attention: Vice President, Treasurer and Chief Financial
Officer, with copies to Southern Company Services, Inc.,
64 Perimeter Center East, Atlanta, Georgia 30346,
Attention: Corporate Finance Department. A duplicate copy
of each notice required to be given hereunder by either the
Issuer or the Trustee shall also be given to the Company
and to the Bank (if any), and a duplicate copy of each
notice required to be given hereunder by the Trustee to
either the Issuer or the Company shall also be given to the
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other and to the Bank (if any). The Issuer, the Company,
the Trustee and the Bank (if any) may, by notice given
hereunder, designate any further or different addresses to
which subsequent notices, certificates or other
communications shall be sent.
SECTION 13.05. Trustee as Paying Agent and Bond
Registrar. The Trustee is hereby designated and agrees to
act as the Paying Agent and Bond Registrar for and in
respect of the Bonds.
SECTION 13.06. Payments Due on Saturdays, Sundays and
Holidays. In any case where the date of maturity of
interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall not be a Business Day, then
payment of interest or principal and premium, if any, need
not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as
if made on the date of maturity or the date fixed for
redemption, and no interest on such payment shall accrue
for the period after such date.
SECTION 13.07. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the
same instrument.
SECTION 13.08. Applicable Provisions of Law. This
Indenture shall be governed by and construed in accordance
with the laws of the State of Georgia.
SECTION 13.09. Captions. The captions or headings in
this Indenture are for convenience only and in no way
define, limit or describe the scope or intent of any
provisions or Sections of this Indenture.
SECTION 13.10. Immunity of Members, Officers and
Employees of Issuer. No recourse shall be had for the
enforcement of any obligation, covenant, promise or
agreement of the Issuer contained in this Indenture or in
any Bond issued hereunder or for any claim based hereon or
otherwise in respect hereof or upon any obligation,
covenant, promise or agreement of the Issuer contained in
the Agreement, against any member, officer or employee, as
such, in his individual capacity, past, present or future,
of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor
corporation, whether by virtue of any constitutional
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provision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture, the Bonds and
the Agreement are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any member, officer or employee as such, past,
present or future, of the Issuer or of any successor
corporation, either directly or by reason of any of the
obligations, covenants, promises or agreements entered into
between the Issuer and the Trustee to be implied therefrom
as being supplemental hereto or thereto, and that all
personal liability of that character against every such
member, officer and employee is by the execution of this
Indenture and the Bonds, and as a condition of, and as a
part of the consideration for, the execution of this
Indenture and the Bonds, expressly waived and released.
The immunity of members, officers and employees of the
Issuer under the provisions contained in this Section 13.10
shall survive the termination of this Indenture.
IN WITNESS WHEREOF, the Savannah Economic Development
Authority has caused these presents to be signed in its name and
behalf and its official seal to be hereunto affixed and attested
by its duly authorized officers, and to evidence its acceptance
of the trusts hereby created __________________________________,
as Trustee, has caused these presents to be signed in its name
and behalf and its official seal to be hereunto affixed and
attested by its duly authorized officers, all as of the day and
year first above written.
SAVANNAH ECONOMIC DEVELOPMENT
AUTHORITY
By:
Attest: President
Assistant Secretary
_______________________________,
as Trustee
By:
Attest: Title: _________________________
Title: ______________________
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EXHIBIT "A"
[ADJUSTABLE RATE FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF GEORGIA
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BOND
(Savannah Electric and Power Company Project)
FIRST SERIES 1996
Maturity Date: January 1, 2026 Dated Date: January __, 1996
CUSIP: 80483B __ __
REGISTERED OWNER:
PRINCIPAL AMOUNT:
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE
TIMES AND IN THE MANNER HEREINAFTER DESCRIBED, AND MUST BE SO
TENDERED OR WILL BE DEEMED TO HAVE BEEN SO TENDERED UNDER
CERTAIN CIRCUMSTANCES DESCRIBED HEREIN.
Savannah Economic Development Authority (herein called the
"Issuer"), a public body corporate and politic and an
instrumentality of the State of Georgia, duly created and
existing under the laws of the State of Georgia, for value
received, hereby promises to pay, solely from the special fund
provided therefor as hereinafter set forth, to the Registered
Owner specified above, or registered assigns or legal
representative, on the Maturity Date specified above (or earlier
as hereinafter referred to), upon the presentation and surrender
hereof at the principal corporate trust office of the Trustee
(hereinafter mentioned), the Principal Amount specified above
and to pay, solely from said special fund, to said Registered
Owner interest on said Principal Amount at the rate and on the
dates described below, from the Dated Date specified above and
thereafter from the Interest Payment Date (hereinafter
mentioned) next preceding the date of authentication hereof to
which interest has been paid or duly provided for, unless the
date of authentication hereof is an Interest Payment Date to
which interest has been paid or duly provided for, in which case
from the date of authentication hereof, or unless no interest
has been paid or duly provided for on the Bonds of this series,
in which case from said Dated Date, until payment of the
<PAGE>
principal hereof has been made or duly provided for.
Notwithstanding the foregoing, if the date of authentication of
this Bond is after any date which is the second (2nd) Business
Day (as defined in the Indenture hereinafter mentioned) next
preceding any Interest Payment Date (a "Record Date") and before
the following Interest Payment Date, this Bond shall bear
interest from such Interest Payment Date; provided, however,
that if the Issuer shall default in the payment of interest due
on such Interest Payment Date, then this Bond shall bear
interest from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for on the Bonds of this series,
from said Dated Date. Payment of the principal and redemption
premium, if any, and interest on this Bond shall be made in any
coin or currency of the United States of America which on the
respective dates of payment thereof shall be legal tender for
the payment of public and private debts. Unless other
arrangements are made pursuant to the Indenture, interest is
payable by check or draft mailed on the Interest Payment Date
(or, if such day is not a Business Day, the next succeeding
Business Day) to the Holder hereof at the close of business on
the Record Date immediately preceding each Interest Payment Date
at the address of such Holder as it appears on the Bond
registration books of the Issuer. In any case where the date of
maturity of interest on or premium, if any, or principal of this
Bond or the date fixed for redemption of this Bond shall not be
a Business Day, then payment of such interest, premium or
principal need not be made on such date but shall be made on the
next succeeding Business Day, with the same force and effect as
if made on the date of maturity or the date fixed for
redemption, and, in the case of such payment, no interest shall
accrue for the period from and after such date.
The following definitions shall apply to the terms used in
this Bond:
"Adjustable Rate" means the interest rate borne by the Bonds
of this series from the date of initial issuance and delivery
thereof to (but not including) the Conversion Date, which rate
is determined in the manner hereinafter described.
"Conversion Date" or "Optional Conversion Date" means the
Interest Payment Date, which shall be a Business Day, from and
after which the interest rate on the Bonds of this series is
converted from the Adjustable Rate to the Fixed Rate as a result
of the exercise by the Company (hereinafter mentioned) of the
Conversion Option.
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"Conversion Option" means the option granted to the Company
in the Indenture pursuant to which the interest rate on the
Bonds of this series is converted from the Adjustable Rate to
the Fixed Rate as of the Optional Conversion Date.
"Demand Purchase Option" means the option granted in the
Indenture to owners of Bonds of this series, while the Bonds
bear interest at the Adjustable Rate, to require that Bonds be
purchased prior to the Conversion Date.
"Fixed Rate" means the interest rate in effect on the Bonds
of this series from and after the Conversion Date, which rate is
determined in the manner hereinafter described.
"Interest Payment Date" means (i) so long as the Bonds of
this series bear interest at the Adjustable Rate, the Interest
Payment Date for each Interest Period shall be the first day of
the next succeeding Interest Period; provided, that so long as
the Interest Period is one week in duration, the term Interest
Payment Date shall mean the first day of each calendar month,
and (ii) so long as the Bonds of this series bear interest at
the Fixed Rate, January 1 and July 1 in each year, commencing on
the January 1 or July 1 next succeeding the Conversion Date.
"Interest Period" means the period from the date of initial
issuance and delivery of the Bonds of this series to and
including the next succeeding Tuesday (unless the Bonds are
issued and delivered on a Tuesday, in which case the first
Interest Period shall include only such Tuesday), and each
period of one week's duration thereafter, commencing on
Wednesday of each week and continuing through Tuesday of the
following week. At the option of the Company, the duration of
the Interest Period may be adjusted in accordance with the
provisions of Section 2.02(c)(ii) of the Indenture, in which
event the term "Interest Period" shall mean (i) for any period
of time of one week's duration, the period commencing on
Wednesday of each week and continuing through Tuesday of the
following week, (ii) for any period of time of one month's
duration, the period commencing on the first day of each
calendar month and terminating on the last day of such month,
(iii) for any period of time of three month's duration, the
period commencing on the first day of the first calendar month
and terminating on the last day of the third calendar month, and
(iv) for any period of time of six month's duration, the period
commencing on the first day of the first calendar month and
terminating on the last day of the sixth calendar month. Under
no circumstances shall the Interest Period exceed six months in
duration. The duration of the Interest Period may be adjusted
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effective only on the day following the last day of the
preceding Interest Period; provided, however, that an Interest
Period of one week's duration may be adjusted to any other
authorized duration only on the first day of each calendar
month. In the event the duration of the Interest Period is to
be adjusted from one week to another authorized duration, and
the expiration of the last Interest Period prior to the first
calendar day of the month does not occur on the last day of a
calendar month, then in such event the duration of such Interest
Period shall be increased or decreased at the discretion of the
Remarketing Agent, by not more than six (6) days, in order to
cause the expiration of such Interest Period to occur on the
last day of the calendar month.
"Letter of Credit" means any letter of credit, line of
credit, insurance policy or other credit facility provided by
the Company pursuant to the Agreement (hereinafter mentioned),
including any Substitute Letter of Credit.
"Letter of Credit Termination Date" means the later of
(i) that date upon which the Letter of Credit shall expire or
terminate pursuant to its terms, or (ii) that date to which the
expiration or termination of the Letter of Credit may be
extended, from time to time, either by extension or renewal of
the existing Letter of Credit or the issuance of a Substitute
Letter of Credit.
"Mandatory Purchase Date" means the Interest Payment Date
immediately preceding the Letter of Credit Termination Date.
"Preliminary Interest Rate" means the preliminary interest
rate required to be determined by the Remarketing Agent upon any
change in the duration of the Interest Period.
"Preliminary Rate Determination Date" means the fifteenth
(15th) day next preceding the Rate Determination Date (or if
such date is not a Business Day, then the Business Day
immediately preceding such date).
"Purchase Price" means an amount equal to 100% of the
principal amount of any Bond tendered or deemed tendered
pursuant to the Indenture, plus, in the case of purchase
pursuant to the exercise of the Demand Purchase Option, accrued
and unpaid interest thereon to the date of purchase.
"Rate Determination Date" means the first day of each
Interest Period that has a duration different from the preceding
Interest Period, on which date the Remarketing Agent shall
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establish the Adjustable Rate for such Interest Period (or if
such date is not a Business Day, then the Business Day
immediately preceding such date).
"Remarketing Agent" means the Remarketing Agent acting as
such under the Remarketing Agreement, dated as of January 1,
1996, between the Company and SunTrust Bank, Atlanta.
"Substitute Letter of Credit" means a letter of credit, line
of credit, insurance policy or other credit facility delivered
to the Trustee in accordance with the Agreement (i) issued by
the Bank, (ii) replacing any existing Letter of Credit,
(iii) dated as of a date prior to the expiration or termination
date of the Letter of Credit for which the same is to be
substituted, (iv) which shall expire on a date which is at least
six (6) days after an Interest Payment Date for the Bonds of
this series and (v) issued on substantially identical terms and
conditions as the then existing Letter of Credit, except that
the Substitute Letter of Credit may expire on a date which is
later than the expiration date of the Letter of Credit being
replaced, and except that the stated amount of the Substitute
Letter of Credit shall equal the sum of (A) the aggregate
principal amount of Bonds of this series at the time
outstanding, plus (B) an amount equal to at least 50 days'
interest (computed at the Maximum Interest Rate (as defined in
the Indenture), so long as the Bonds of this series bear
interest at the Adjustable Rate) on all Bonds of this series at
the time outstanding.
"Tender Date" means (i) during any Interest Period of other
than one week's duration, any Interest Payment Date, (ii) during
any Interest Period of one week's duration, the seventh (7th)
day (unless such day is not a Business Day, in which case the
next Business Day) following receipt by the Tender Agent of
notice from the owner that such owner has elected to tender
Bonds (as more fully described herein), and (iii) the Conversion
Date.
This Bond shall bear interest as follows:
(a) Prior to the Conversion Date, this Bond shall bear
interest at the Adjustable Rate, as hereinafter described.
The Adjustable Rate for each Interest Period will be
determined by the Remarketing Agent on the first day of each
such Interest Period, as follows: the interest rate for
each Interest Period shall be established at a rate equal to
the interest rate per annum that, in the sole judgment of
the Remarketing Agent, taking into account prevailing
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financial market conditions, would be the minimum interest
rate required to sell the Bonds of this series at a price of
Par (as such term is defined in the Indenture) on the date
of such determination. Upon determining the Adjustable Rate
for each Interest Period, the Remarketing Agent shall notify
the Trustee and the Company of such rate by telephone or
such other manner as may be appropriate by not later than
2:00 P.M., Atlanta, Georgia time on the date of such
determination, which notice shall be promptly confirmed in
writing.
Pursuant to the Indenture, the Company is authorized to
adjust the duration of the Interest Period and, in that
connection, shall instruct the Remarketing Agent, not later
than the fifth (5th) day prior to the Preliminary Rate
Determination Date, to compute the Adjustable Rate on the
basis of an Interest Period of one week, one month, three
months or six months. In the event the Company elects to
adjust the duration of the Interest Period, the Company
shall notify the Trustee in writing, on the date such
instruction is provided to the Remarketing Agent, of such an
election with respect to the Interest Period and of the Rate
Determination Date on which such new Interest Period shall
commence.
Following receipt of instructions from the Company
regarding the computation of the Adjustable Rate based upon
a change in the duration of the Interest Period, the
Remarketing Agent shall, on the Preliminary Rate
Determination Date, determine the Preliminary Interest Rate
for the Bonds of this series. Upon determining the
Preliminary Interest Rate, the Remarketing Agent shall
notify the Trustee and the Company thereof by telephone or
such other manner as may be appropriate by not later than
2:00 P.M., Atlanta, Georgia time on the date of such
determination, which notice shall be promptly confirmed in
writing.
The Trustee shall then mail notice to the registered
owners of such Bonds, not more than two Business Days
following the Preliminary Rate Determination Date, stating
(i) that the duration of the Interest Period will be
adjusted as of the first day of the next succeeding Interest
Period and specifying the duration of the Interest Period
and the date of the commencement of such Interest Period;
(ii) the Preliminary Interest Rate; (iii) that the
Remarketing Agent will determine the Adjustable Rate for
such Interest Period on the Rate Determination Date and that
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in no event will such rate be lower than the Preliminary
Interest Rate; (iv) that the date of commencement of such
Interest Period is a Tender Date, and that the owners of
such Bonds shall be deemed to have tendered their Bonds on
such Tender Date unless the owners of such Bonds have
directed the Trustee not to purchase their Bonds on such
Tender Date by providing the notice described below;
(v) that if such notice of election not to tender is given
by the owners to the Trustee within the period set forth in
such notice, then the owners of such Bonds will not be
entitled to tender such Bonds until the next succeeding
Tender Date; and (vi) that any election not to tender given
in accordance with such procedure will be irrevocable.
As described above, the owner of a Bond that is subject
to mandatory tender because the Company has elected to
change the duration of the Interest Period shall have the
option to make an irrevocable election not to tender such
Bond for purchase on the Tender Date. In order to exercise
such option, the owner of such Bond shall give to the
Trustee on or prior to 12:30 P.M., Atlanta, Georgia time, on
the seventh (7th) day preceding such Tender Date (or, if
such day is not a Business Day, the next preceding Business
Day) written notice stating (a) the principal of the Bonds
which the owner elects not to tender, (b) the number of such
Bonds, (c) that such owner irrevocably elects not to tender
such Bonds on such Tender Date, and (d) that such Owner
acknowledges that the duration of the next Interest Period
will differ from the duration of the Interest Period then
ending.
Owners of Bonds not providing the Trustee with the
notice described above shall be required to tender their
Bonds to the Tender Agent for purchase at the Purchase
Price, and any such Bonds not so tendered on the Rate
Determination Date ("Untendered Bonds") for which there has
been irrevocably deposited in trust with the Trustee an
amount of moneys sufficient to pay the Purchase Price of the
Untendered Bonds, shall be deemed to have been purchased.
IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS (OTHER THAN
AN OWNER OF BONDS WHO HAS GIVEN NOTICE AS PROVIDED ABOVE) TO
TENDER ITS BONDS ON OR PRIOR TO THE RATE DETERMINATION DATE,
SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING
ANY INTEREST TO ACCRUE SUBSEQUENT TO THE RATE DETERMINATION
DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNTENDERED
BONDS, AND ANY UNTENDERED BONDS SHALL NO LONGER BE ENTITLED
TO THE BENEFITS OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF
PAYMENT OF THE PURCHASE PRICE THEREFOR.
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On the Rate Determination Date, the Remarketing Agent
shall establish the Adjustable Rate for the Bonds of this
series for the Interest Period commencing on the Rate
Determination Date, and shall notify the Trustee and the
Company thereof by telephone or such other manner as may be
appropriate by not later than 2:00 P.M., Atlanta, Georgia
time on the date of such determination, which notice shall
be promptly confirmed in writing. The Preliminary Interest
Rate and the Adjustable Rate on the Bonds of this series for
such Interest Period shall be established at a rate equal to
the interest rate per annum that, in the sole judgment of
the Remarketing Agent, taking into account prevailing
financial market conditions, would be the minimum interest
rate required to sell the Bonds of this series at a price of
Par on the Rate Determination Date; provided, that the
Adjustable Rate on the Bonds of this series for such
Interest Period shall in no event be less than the
Preliminary Interest Rate. The Adjustable Rate determined
by the Remarketing Agent for the Bonds of this series will
take effect on the first day of the Interest Period for
which such rate was determined.
(b) From and after the Conversion Date, the Bonds of
this series shall bear interest at the Fixed Rate,
determined as follows: commencing on the Conversion Date
and thereafter through and including the maturity or prior
redemption of the Bonds of this series, the Fixed Rate shall
be the interest rate per annum which, in the sole judgment
of the Remarketing Agent, taking into account prevailing
financial market conditions, would be the minimum interest
rate required to sell such Bonds on the Conversion Date at a
price equal to Par. The Fixed Rate shall be determined by
the Remarketing Agent on or before the second (2nd) Business
Day preceding the Conversion Date, and the Remarketing Agent
shall notify the Trustee and the Company thereof by
telephone or such other manner as may be appropriate by not
later than 2:00 P.M., Atlanta, Georgia time on such date,
which notice shall be promptly confirmed in writing.
Prior to the Conversion Date, interest on the Bonds of this
series shall be computed on the basis of (i) a 365- or 366-day
year, as the case may be, actual number of days elapsed, so long
as the Interest Period is one week or one month in duration, and
(ii) a 360-day year comprised of twelve 30-day months, so long
as the Interest Period is three months or six months in
duration. On and after the Conversion Date, interest on the
Bonds of this series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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The interest rate on the Bonds of this series shall be
converted from the Adjustable Rate to the Fixed Rate upon
satisfaction of certain conditions and notice given by the
Company and by the Trustee in accordance with the requirements
of the Indenture, in the manner and subject to the provisions
with respect thereto set forth in the Indenture, and the Bonds
of this series shall be subject to mandatory tender for purchase
by the owners thereof on the Conversion Date. On and after the
Conversion Date, the Demand Purchase Option will not be
available to the owners of the Bonds of this series. All
owners of Bonds of this series shall be required to tender their
Bonds to the Tender Agent on or prior to the Conversion Date for
purchase at the Purchase Price. All owners of Bonds of this
series shall also be required to tender their Bonds to the
Tender Agent on or prior to the Mandatory Purchase Date for
purchase at the Purchase Price. Accrued interest on the Bonds
of this series will be payable on the Conversion Date and the
Mandatory Purchase Date to the owners of Bonds as of the
applicable Record Date. Any Bonds not so tendered on the
Conversion Date or the Mandatory Purchase Date ("Untendered
Bonds"), for which there has been irrevocably deposited in trust
with the Tender Agent an amount of moneys sufficient to pay the
Purchase Price of the Untendered Bonds, shall be deemed to have
been purchased at the Purchase Price. IN THE EVENT OF A FAILURE
BY AN OWNER OF BONDS OF THIS SERIES TO TENDER ITS BONDS ON OR
PRIOR TO THE CONVERSION DATE OR THE MANDATORY PURCHASE DATE,
SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY
INTEREST TO ACCRUE SUBSEQUENT TO THE CONVERSION DATE OR THE
MANDATORY PURCHASE DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH
UNTENDERED BONDS, AND ANY UNTENDERED BONDS SHALL NO LONGER BE
ENTITLED TO THE BENEFITS OF THE INDENTURE, EXCEPT FOR THE
PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREFOR.
This Bond shall be purchased at the option of the Owner
hereof ("Demand Purchase Option") at the Purchase Price, upon:
(a) delivery to the Tender Agent at its principal
corporate trust office and to the Remarketing Agent at its
principal office of a written or telephonic (promptly
confirmed in writing) notice by 11:00 A.M., Atlanta, Georgia
time, on a Business Day (said notice to be irrevocable and
effective upon receipt) which states (i) the aggregate
principal amount and the Bond numbers of Bonds to be
purchased; and (ii) the date on which such Bonds are to be
purchased, which date shall be a Tender Date not prior to
the seventh (7th) day next succeeding the date of delivery
of such notice and which date shall be prior to the
Conversion Date; and
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(b) delivery to the Tender Agent at its office
designated below at or prior to 9:30 A.M., Atlanta, Georgia
time, on the Business Day preceding the date designated for
purchase in the notice described in (a) above of such Bonds
to be purchased, endorsed in blank, and if such Bonds are to
be purchased prior to the next succeeding Interest Payment
Date and after the Record Date in respect thereof, a due
bill, payable to bearer, for interest due on such Interest
Payment Date.
Any delivery of a notice required to be made to the Tender
Agent at its principal corporate trust office pursuant to (a)
above or otherwise shall be delivered to the Tender Agent at
________________________________________________________________
___________________________________________________, Attention:
Corporate Trust Department, or to the office designated for such
purpose by any successor Tender Agent; any delivery of a notice
required to be made to the Remarketing Agent at its principal
office pursuant to (a) above or otherwise shall be delivered to
the Remarketing Agent at SunTrust Bank, Atlanta, 25 Park Place,
5th Floor, Atlanta, Georgia 30303, Attention: Investment Banking
Division, or to the office designated for such purpose by any
successor Remarketing Agent; and any delivery of Bonds required
to be made to the Tender Agent pursuant to (b) above or
otherwise shall be delivered to the Tender Agent at ____________
________________________________________________________________
__________________________________, Attention: Corporate Trust
Department, or to the office designated for such purpose by any
successor Tender Agent.
The Bonds are issued pursuant to and in full compliance with
the Constitution and laws of the State of Georgia, and pursuant
to a resolution adopted by the Issuer on __________, 1996, which
resolution authorizes the execution and delivery of the
Agreement (hereinafter mentioned) and the Indenture. The Bonds
and the interest thereon are limited special obligations of the
Issuer and are payable solely from the special fund hereinafter
referred to out of the revenues and other amounts derived from
the Agreement (hereinafter mentioned) and are secured as set
forth in the Indenture. The Bonds and premium, if any, and
interest thereon and the Purchase Price therefor shall not be
deemed to constitute a debt or general obligation or a pledge of
the faith and credit of the State of Georgia or any political
subdivision thereof. Neither the State of Georgia nor any
political subdivision thereof nor the Issuer shall be obligated
to pay the principal of the Bonds or premium, if any, or
interest thereon or the Purchase Price therefor or other costs
incident thereto except from the revenues and receipts pledged
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<PAGE>
therefor, and neither the faith and credit nor the taxing power
of the State of Georgia or any political subdivision thereof is
pledged to the payment of the principal of the Bonds or premium,
if any, or interest thereon or the Purchase Price therefor or
other costs incident thereto. Payments under the Agreement
sufficient for the prompt payment when due of the principal of
and premium, if any, and interest on the Bonds are to be paid to
the Trustee by the Company for the account of the Issuer and
deposited in a special account created by the Issuer and
designated "Savannah Economic Development Authority Industrial
Development Revenue Bonds (Savannah Electric and Power Company
Project) First Series 1996 Bond Fund" (herein called the "Bond
Fund") and have been duly pledged and assigned for that purpose.
In addition, substantially all other rights of the Issuer under
the Agreement have also been assigned to the Trustee to secure
payment of the principal of and premium, if any, and interest
on, and the Purchase Price of, the Bonds issued under the
Indenture.
This Bond is one of a duly authorized series of revenue
bonds of the Issuer known as "Industrial Development Revenue
Bonds (Savannah Electric and Power Company Project), First
Series 1996", issued for the purpose of financing the cost of
acquiring, constructing, installing and equipping certain
facilities comprising the Project (as defined in the Agreement).
The Bonds of this series initially authorized aggregate
______________________________ Dollars ($____________) in
principal amount. The Indenture provides that additional series
of Bonds may be issued under the Indenture for the purpose of
providing additional funds for payment of the cost of the
Project or refunding any of the Bonds then outstanding of any
series.
The Bonds of this series and all such additional Bonds
(herein called collectively the "Bonds") are issued or are to be
issued under and pursuant to a trust indenture (said trust
indenture, together with all trust indentures supplemental
thereto as therein permitted, being herein called the
"Indenture"), dated as of the 1st day of January, 1996, by and
between the Issuer and ________________________________________,
as Trustee (said banking association and any successor trustee
under the Indenture being herein called the "Trustee"), an
executed counterpart of which Indenture is on file at the
principal corporate trust office of the Trustee. Reference is
hereby made to the Indenture for the provisions, among others,
with respect to the custody and application of the proceeds of
Bonds issued under the Indenture, the collection and disposition
of revenues, a description of the funds charged with and pledged
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to the payment of the principal of and premium, if any, and
interest on the Bonds, the nature and extent of the security,
the terms and conditions under which the Bonds are or may be
issued, the rights, duties and obligations of the Issuer and of
the Trustee, the rights of the holders of the Bonds and the
terms and conditions pursuant to which the Indenture and the
Agreement may be amended, and, by the acceptance of this Bond,
the holder hereof assents to all of the provisions of the
Indenture. Capitalized terms used herein and not defined shall
have the meaning ascribed to them in the Indenture.
The Issuer has entered into a Lease Agreement, dated as of
January 1, 1996 (herein called the "Agreement"), with Savannah
Electric and Power Company, a corporation organized and existing
under the laws of the State of Georgia (herein called the
"Company"). The Agreement provides for the payment by the
Company of amounts sufficient to pay the principal of and
premium, if any, and interest on, and the Purchase Price of, the
Bonds as the same shall become due and payable. The Agreement
further provides that the amounts so to be paid thereunder shall
be paid directly to the Trustee as assignee of the Issuer; such
payments are to be deposited to the credit of the Bond Fund
created under the Indenture which special fund is pledged to and
charged with the payment of the principal of and premium, if
any, and interest on all Bonds issued under the Indenture and
such amounts so to be paid thereunder have been duly pledged and
assigned for that purpose.
No Letter of Credit has been provided in connection with the
initial issuance of the Bonds of this series. Subsequent to
such initial issuance, the Company may, in its sole discretion,
furnish a Letter of Credit, and under certain circumstances
described in the Indenture, the Company may obtain a Substitute
Letter of Credit in substitution for any Letter of Credit.
The Bonds of this series are issuable as fully registered
Bonds without coupons in denominations of $100,000 or integral
multiples of $5,000 in excess thereof prior to the Conversion
Date, and $5,000 or any integral multiple thereof after the
Conversion Date (an "Authorized Denomination"). At the
principal corporate trust office of the Trustee, in the manner
and subject to the limitations, conditions and charges provided
in the Indenture, Bonds may be exchanged for an equal aggregate
principal amount of Bonds of the same series and maturity and of
any Authorized Denominations.
On or prior to the Conversion Date, the Bonds of this series
are subject to redemption, at the direction of the Company, in
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whole on any Business Day or in part on any Interest Payment
Date at a redemption price equal to the principal amount of the
Bonds to be redeemed plus accrued interest thereon to the
redemption date but without premium.
After the Conversion Date, the Bonds of this series are
subject to redemption, at the direction of the Company, in whole
or in part at any time on or after the First Day of Redemption
Period as described below, at the principal amount thereof, plus
a redemption premium (expressed as a percentage of principal
amount) plus accrued interest thereon to the redemption date
(such premium to be paid only from Available Moneys on deposit
in the Bond Fund other than any moneys paid by the Bank unless
any Letter of Credit then in effect provides for payment of such
premium) as follows:
Length of Fixed
Rate Period From Redemption Premium
Conversion Date as a Percentage of
Until Maturity First Day of Principal Amount
(Expressed in Years) Redemption Period of Bonds
More than 5 5th Anniversary of 2% declining by 1%
Conversion Date every year after
the 5th Anniver-
sary of the
Conversion Date
until reaching 0%,
and thereafter 0%
5 or less 1st Anniversary of 0%
Conversion Date
The Bonds of this series are also subject to redemption
in the event the Trustee and the Issuer shall have received
written notice from the Company of its determination of the
occurrence of certain events specified in Section 3.06 of
the Indenture. If called for redemption in such event, the
Bonds of this series shall be subject to redemption at any
time in whole at the principal amount thereof plus accrued
interest to the redemption date but without premium.
In addition, the Bonds of this series are subject to
mandatory redemption, pursuant to the sinking fund
requirements of Section 3.07 of the Indenture, on
January 1, 1997, and on each January 1 thereafter to and
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including January 1, 2025, at the principal amount thereof
plus accrued interest to the redemption date but without
premium.
Any such redemption, either in whole or in part, shall
be made upon at least thirty (30) (fifteen (15) prior to
the Conversion Date) days' prior notice as provided in the
Indenture, and shall be made in the manner and under the
terms and conditions provided in the Indenture. On the date
designated for redemption, notice having been given and
moneys for payment of the redemption price and accrued
interest being held by the Trustee or by the paying agents,
all as provided in the Indenture, the Bonds or portions of
Bonds so called for redemption shall become and be due and
payable at the redemption price provided for redemption of
such Bonds or such portions thereof on such date, interest
on such Bonds or such portions thereof so called for
redemption shall cease to accrue, such Bonds or such
portions thereof so called for redemption shall cease to be
entitled to any benefit or security under the Indenture,
and the Holders thereof shall have no rights in respect of
such Bonds or such portions thereof so called for
redemption except to receive payment of the redemption
price and accrued interest thereon so held by the Trustee
or by the paying agents. If a portion of this Bond shall
be called for redemption, a new registered Bond in
principal amount equal to the unredeemed portion hereof
will be issued to the Holder upon the surrender hereof.
The Holder of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with
respect to any event of default under the Indenture or to
institute, appear in or defend any suit or other proceeding
with respect thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and
with the effect set forth in the Indenture, the principal
of all the Bonds then outstanding under the Indenture may
become or may be declared due and payable before the stated
maturity thereof, together with the interest accrued
thereon.
Modifications or alterations of the Indenture or any
trust indenture supplemental thereto or of the Agreement
may be made only to the extent and in the circumstances
permitted by the Indenture.
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<PAGE>
The transfer of this Bond may be registered by the
registered owner hereof in person or by his attorney or
legal representative at the principal corporate trust
office of the Trustee, but only in the manner and subject
to the limitations and conditions provided in the Indenture
and upon surrender and cancellation of this Bond. Upon any
such registration of transfer the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange for
this Bond a new Bond or Bonds, registered in the name of
the transferee, of Authorized Denominations, in aggregate
principal amount equal to the principal amount of this Bond
and of the same series and maturity.
No covenant or agreement contained in this Bond or the
Indenture shall be deemed to be a covenant or agreement of
any member, agent or employee of the Issuer in his
individual capacity, and neither the officers of the Issuer
nor any official executing this Bond shall be liable
personally on this Bond or be subject to any personal
liability or accountability by reason of the issuance of
this Bond.
This Bond shall be fully negotiable as an investment
security as provided by the laws of the State of Georgia
and is issued with the intent that the laws of the State of
Georgia shall govern its construction.
All acts, conditions and things required to happen,
exist and be performed precedent to and in the issuance of
this Bond and the execution of the Indenture have happened,
exist and have been performed as so required.
This Bond shall not be valid or become obligatory for
any purpose or be entitled to any benefit or security under
the Indenture until it shall have been authenticated by the
execution by the Trustee of the certificate of
authentication endorsed hereon.
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<PAGE>
IN WITNESS WHEREOF, the Savannah Economic Development
Authority has caused this Bond to be executed in its name
and on its behalf by the facsimile signature of its
President or Vice Chairman and its official seal or a
facsimile thereof to be impressed or printed hereon and
attested by the manual or facsimile signature of its
Secretary or Assistant Secretary.
SAVANNAH ECONOMIC DEVELOPMENT
AUTHORITY
By:
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated
therein and issued under the provisions of the
within-mentioned Indenture.
______________________________,
as Trustee or Tender Agent
Date: __________________ By:
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be endorsed on all Bonds)
STATE OF GEORGIA SS:
COUNTY OF CHATHAM
The undersigned, Clerk of the Superior Court of Chatham
County, Georgia, hereby certifies that the within First
Series 1996 Bond was validated and confirmed by judgment of
the Superior Court of Chatham County, Georgia rendered on
the ____ day of ___________, 1996, that no intervention or
objection was filed thereto and that no appeal has been
taken therefrom.
IN WITNESS WHEREOF, I have caused this Certificate to
be executed by the use of my facsimile signature and have
caused the official seal of the Court or a facsimile
thereof to be affixed hereto.
Clerk, Superior Court
Chatham County, Georgia
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<PAGE>
EXHIBIT "B"
[FIXED RATE FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF GEORGIA
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BOND
(Savannah Electric and Power Company Project)
FIRST SERIES 1996
Savannah Economic Development Authority (herein called
the "Issuer"), a public body corporate and politic and an
instrumentality of the State of Georgia, duly created and
existing under the laws of the State of Georgia, for value
received, hereby promises to pay, solely from the special
fund provided therefor as hereinafter set forth, to
, or registered assigns or legal representative,
on the 1st day of January, 2026 (or earlier as hereinafter
referred to), upon the presentation and surrender hereof at
the principal corporate trust office of the Trustee
(hereinafter mentioned) located in __________, _________, the
principal sum of DOLLARS in any coin or currency of
the United States of America which on the date of payment
thereof is legal tender for the payment of public and private
debts, and to pay, solely from said special fund, to the
registered owner hereof by check or draft mailed to the
registered owner at his address as it appears on the bond
registration books of the Issuer, interest on said principal
sum from the latest semiannual interest payment date to which
interest has been paid on Bonds of this series preceding the
date hereof, unless the date hereof be an interest payment
date to which interest is being paid, in which case from the
date hereof, or unless the date hereof is prior to _______ 1,
____, in which case from ______ 1, ____, at the rate of
per centum ( %) per annum until payment
of said principal sum, such interest being payable
semiannually on the 1st days of January and July in each year
in like coin or currency. Interest shall be calculated on
the basis of a year of 360 days and twelve 30-day months.
The interest payable on any January 1 or July 1 will,
subject to certain exceptions provided in the Indenture
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<PAGE>
(hereinafter mentioned), be paid to the person in whose name
this Bond is registered at the close of business on the
record date, which shall be the December 15 or June 15, as
the case may be, next preceding such interest payment date.
The Bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Georgia, and
pursuant to a resolution adopted by the Issuer on _________,
199_, which resolution authorizes the execution and delivery
of the Agreement (hereinafter mentioned) and the Indenture.
The Bonds and the interest thereon are limited special
obligations of the Issuer and are payable solely from the
special fund hereinafter referred to out of the revenues and
other amounts derived from the Agreement (hereinafter
mentioned) and are secured as set forth in the Indenture.
The Bonds and premium, if any, and interest thereon shall not
be deemed to constitute a debt or general obligation or a
pledge of the faith and credit of the State of Georgia or any
political subdivision thereof. Neither the State of Georgia
nor any political subdivision thereof nor the Issuer shall be
obligated to pay the principal of the Bonds or premium, if
any, or interest thereon or other costs incident thereto
except from the revenues and receipts pledged therefor, and
neither the faith and credit nor the taxing power of the
State of Georgia or any political subdivision thereof is
pledged to the payment of the principal of the Bonds or
premium, if any, or interest thereon or other costs incident
thereto. Payments under the Agreement sufficient for the
prompt payment when due of the principal of and premium, if
any, and interest on the Bonds are to be paid to the Trustee
by the Company (hereinafter mentioned) for the account of the
Issuer and deposited in a special account created by the
Issuer and designated "Savannah Economic Development
Authority Industrial Development Revenue Bonds (Savannah
Electric and Power Company Project) First Series 1996 Bond
Fund" (herein called the "Bond Fund") and have been duly
pledged and assigned for that purpose. In addition,
substantially all other rights of the Issuer under the
Agreement have also been assigned to the Trustee to secure
payment of the principal of and premium, if any, and interest
on the Bonds issued under the Indenture.
This Bond is one of a duly authorized series of revenue
bonds of the Issuer known as "Industrial Development Revenue
Bonds (Savannah Electric and Power Company Project), First
Series 1996", issued for the purpose of financing the cost of
acquiring, constructing, installing and equipping certain
facilities comprising the Project (as defined in the
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<PAGE>
Agreement). The Bonds of this series initially authorized
aggregate ____________________________ Dollars ($___________)
in principal amount. The Indenture provides that additional
series of Bonds may be issued under the Indenture for the
purpose of providing additional funds for payment of the cost
of the Project or refunding any of the Bonds then outstanding
of any series.
The Bonds of this series and all such additional Bonds
(herein called collectively the "Bonds") are issued or are to
be issued under and pursuant to a trust indenture (said trust
indenture, together with all trust indentures supplemental
thereto as therein permitted, being herein called the
"Indenture"), dated as of the 1st day of January, 1996, by
and between the Issuer and ________________________________,
as Trustee (said banking association and any successor
trustee under the Indenture being herein called the
"Trustee"), an executed counterpart of which Indenture is on
file at the principal corporate trust office of the Trustee.
Reference is hereby made to the Indenture for the provisions,
among others, with respect to the custody and application of
the proceeds of Bonds issued under the Indenture, the
collection and disposition of revenues, a description of the
funds charged with and pledged to the payment of the
principal of and premium, if any, and interest on the Bonds,
the nature and extent of the security, the terms and
conditions under which the Bonds are or may be issued, the
rights, duties and obligations of the Issuer and of the
Trustee, the rights of the holders of the Bonds and the terms
and conditions pursuant to which the Indenture and the
Agreement may be amended, and, by the acceptance of this
Bond, the holder hereof assents to all of the provisions of
the Indenture.
The Issuer has entered into a Lease Agreement, dated as
of January 1, 1996 (herein called the "Agreement"), with
Savannah Electric and Power Company, a corporation organized
and existing under the laws of the State of Georgia (herein
called the "Company"). The Agreement provides for the
payment by the Company of amounts sufficient to pay the
principal of and premium, if any, and interest on the Bonds
as the same shall become due and payable. The Agreement
further provides that the amounts so to be paid thereunder
shall be paid directly to the Trustee as assignee of the
Issuer; such payments are to be deposited to the credit of
the Bond Fund created under the Indenture which special fund
is pledged to and charged with the payment of the principal
of and premium, if any, and interest on all Bonds issued
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under the Indenture and such amounts so to be paid thereunder
have been duly pledged and assigned for that purpose.
The Bonds are issuable as fully registered Bonds without
coupons in denominations of $5,000 or any multiple thereof.
At the principal corporate trust office of the Trustee,
located in ________, __________, in the manner and subject to
the limitations, conditions and charges provided in the
Indenture, Bonds may be exchanged for an equal aggregate
principal amount of Bonds of the same series and maturity, of
authorized denominations and bearing interest at the same
rate.
The Bonds of this series are non-callable for redemption
prior to ____________, except in the event the Trustee and
the Issuer shall have received written notice from the
Company of its determination of the occurrence of certain
events specified in Section 3.06 of the Indenture, and except
for mandatory redemptions pursuant to the sinking fund
requirements of Section 3.07 of the Indenture as hereinafter
described. If called for redemption pursuant to said Section
3.06, the Bonds of this series shall be subject to redemption
at any time in whole at the principal amount thereof plus
accrued interest to the redemption date but without premium.
The Bonds of this series are also subject to redemption
by the Issuer prior to maturity on or after ______________,
in whole at any time or in part from time to time (but if in
part by lot or in such other random manner as the Trustee in
its discretion may determine), at the redemption prices
(expressed as percentages of principal amount) set forth in
the table below plus accrued interest to the redemption date.
Redemption Date Redemption
(dates inclusive) Price
In addition, the Bonds of this series are subject to
mandatory redemption, pursuant to the sinking fund
requirements of Section 3.07 of the Indenture, on January 1,
1997, and on each January 1 thereafter to and including
January 1, 2025, at the principal amount thereof plus accrued
interest to the redemption date but without premium.
Any such redemption, either in whole or in part, shall be
made upon at least thirty (30) days' prior notice as provided
in the Indenture, and shall be made in the manner and under
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the terms and conditions provided in the Indenture. On the
date designated for redemption, notice having been given and
moneys for payment of the redemption price and accrued
interest being held by the Trustee or by the paying agents,
all as provided in the Indenture, the Bonds or portions of
Bonds so called for redemption shall become and be due and
payable at the redemption price provided for redemption of
such Bonds or such portions thereof on such date, interest on
such Bonds or such portions thereof so called for redemption
shall cease to accrue, such Bonds or such portions thereof so
called for redemption shall cease to be entitled to any
benefit or security under the Indenture, and the registered
owners thereof shall have no rights in respect of such Bonds
or such portions thereof so called for redemption except to
receive payment of the redemption price and accrued interest
thereon so held by the Trustee or by the paying agents. If a
portion of this Bond shall be called for redemption, a new
registered Bond in principal amount equal to the unredeemed
portion hereof will be issued to the registered owner upon
the surrender hereof.
The holder of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with
respect to any event of default under the Indenture or to
institute, appear in or defend any suit or other proceeding
with respect thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and
with the effect set forth in the Indenture, the principal of
all the Bonds then outstanding under the Indenture may become
or may be declared due and payable before the stated maturity
thereof, together with the interest accrued thereon.
Modifications or alterations of the Indenture or any
trust indenture supplemental thereto or of the Agreement may
be made only to the extent and in the circumstances permitted
by the Indenture.
The transfer of this Bond may be registered by the
registered owner hereof in person or by his attorney or legal
representative at the principal corporate trust office of the
Trustee, located in _________, ________, but only in the
manner and subject to the limitations and conditions provided
in the Indenture and upon surrender and cancellation of this
Bond. Upon any such registration of transfer the Issuer
shall execute and the Trustee shall authenticate and deliver
in exchange for this Bond a new Bond or Bonds, registered in
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the name of the transferee, of authorized denominations, in
aggregate principal amount equal to the principal amount of
this Bond, of the same series and maturity and bearing
interest at the same rate.
No covenant or agreement contained in this Bond or the
Indenture shall be deemed to be a covenant or agreement of
any member, agent or employee of the Issuer in his individual
capacity, and neither the officers of the Issuer nor any
official executing this Bond shall be liable personally on
this Bond or be subject to any personal liability or
accountability by reason of the issuance of this Bond.
This Bond shall be fully negotiable as an investment
security as provided by the laws of the State of Georgia and
is issued with the intent that the laws of the State of
Georgia shall govern its construction.
All acts, conditions and things required to happen, exist
and be performed precedent to and in the issuance of this
Bond and the execution of the Indenture have happened, exist
and have been performed as so required.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any benefit or security under the
Indenture until it shall have been authenticated by the
execution by the Trustee of the certificate of authentication
endorsed hereon.
IN WITNESS WHEREOF, the Savannah Economic Development
Authority has caused this Bond to be executed in its name and
on its behalf by the facsimile signature of its President or
Vice Chairman and its official seal or a facsimile thereof to
be impressed or printed hereon and attested by the manual or
facsimile signature of its Secretary or Assistant Secretary.
SAVANNAH ECONOMIC DEVELOPMENT
AUTHORITY
By:
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<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated
therein and issued under the provisions of the
within-mentioned Indenture.
_______________________________,
as Trustee or Tender Agent
Date: ____________________ By:
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be endorsed on all Bonds)
STATE OF GEORGIA SS:
COUNTY OF CHATHAM
The undersigned, Clerk of the Superior Court of Chatham
County, Georgia, hereby certifies that the within First
Series 1996 Bond was validated and confirmed by judgment of
the Superior Court of Chatham County, Georgia rendered on
the ___ day of ____________, 1996, that no intervention or
objection was filed thereto and that no appeal has been
taken therefrom.
IN WITNESS WHEREOF, I have caused this Certificate to
be executed by the use of my facsimile signature and have
caused the official seal of the Court or a facsimile
thereof to be affixed hereto.
Clerk, Superior Court
Chatham County, Georgia
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<PAGE>
EXHIBIT "C"
FORM OF NOTICE FROM TRUSTEE TO OWNER
REGARDING CHANGE IN DURATION OF INTEREST PERIOD
[Name and address of Owner]
Re: $________________ Savannah Economic Development
Authority Industrial Development Revenue Bonds
(Savannah Electric and Power Company Project),
First Series 1996
The undersigned officer of __________________________,
as Trustee with respect to the captioned Bonds, pursuant to
the provisions of Section 2.02(c)(ii) of that certain Trust
Indenture (the "Indenture"), dated as of January 1, 1996,
by and between the Savannah Economic Development Authority
and the Trustee, does hereby notify you as follows
(capitalized terms used herein shall have the meanings
provided in the Indenture):
(a) The duration of the Interest Period with
respect to the Bonds will be adjusted on ________ 1,
____ (the "Rate Determination Date"). A new Interest
Period, having a duration of [one week/one month/three
months/six months], shall commence on the Rate
Determination Date;
(b) The Preliminary Interest Rate for such
Interest Period is ____%;
(c) SunTrust Bank, Atlanta, as Remarketing Agent,
will determine the Adjustable Rate for such Interest
Period on the Rate Determination Date; in no event will
such rate be lower than the Preliminary Interest Rate
designated in paragraph (b) hereof;
(d) The date of commencement of such Interest
Period is a Tender Date, and you shall be deemed to
have tendered your Bonds on such Tender Date unless you
shall have directed the Trustee not to purchase your
Bonds on such Tender Date by providing the notice
attached hereto to the Trustee on or prior to
12:30 P.M., Atlanta, Georgia time on the seventh (7th)
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day preceding such Tender Date (or, if such day is not
a Business Day, the next preceding Business Day);
(e) in the event you should provide the notice
described in subparagraph (d) above, directing the
Trustee not to purchase your Bonds, you will not be
entitled to tender your Bonds until the next succeeding
Tender Date; and
(f) Any election not to tender given in
accordance with the procedures described above is
irrevocable.
This ______ day of _________________, ______.
__________________________________,
as Trustee
___________________________________
Title:
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<PAGE>
ATTACHMENT TO EXHIBIT "C"
FORM OF OWNER ELECTION
TO RETAIN BONDS UPON
CHANGE IN DURATION OF INTEREST PERIOD
_______________________, [or Successor]
as Trustee
Attention: Corporate Trust Department
________________________________
________________________________
________________________________
Re: $____________ Savannah Economic Development
Authority Industrial Development Revenue Bonds
(Savannah Electric and Power Company Project),
First Series 1996
(Name and address of Registered Holder) hereby
irrevocably elects not to tender the following Bonds held
by such owner for purchase on the Tender Date as a result
of a change in the duration of the Interest Period and, in
that connection, does hereby notify you as follows:
(a) Principal amount of Bonds: _____________;
(b) Bond numbers: _____________;
(c) The undersigned hereby irrevocably elects not
to tender such Bonds on such Tender Date; and
(d) The undersigned acknowledges that the
duration of the next Interest Period will
differ from the duration of the current
Interest Period.
[NAME OF REGISTERED HOLDER]
By: _________________________
Title:
Dated: ______________________
(hartlatj)wpdocs\71588\80364\trustind.2
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EXHIBIT G
FORM OF NOTICE
Savannah Electric and Power Company ("Savannah"), 600 East
Bay Street, Savannah, Georgia 31401, has filed an application
pursuant to Sections 9(a) and 10 of the Act and Rule 23
thereunder.
The proposed transactions relate to the construction by
Savannah of a project (the "Project") consisting of mooring
dolphins, pilings and a coal conveying system for off-loading
coal from barges or ships, including a dock, foundations and
related facilities, for purposes of delivering coal to Savannah's
Plant Kraft (Port Wentworth) in Chatham County, Georgia.
Savannah states that the Project will make available new sources
of coal for Plant Kraft and, therefore, is expected to result in
lower fuel costs for the ultimate benefit of Savannah's rate-
payers.
It is proposed that, in order to provide funds for payment
of the costs of acquiring, constructing, installing and equipping
the Project, the Savannah Economic Development Authority, a
public body corporate and politic and an instrumentality of the
State of Georgia (the "Authority"), will issue and sell its
industrial development revenue bonds (the "Revenue Bonds") in an
aggregate principal amount not exceeding $7,000,000. The Revenue
Bonds may be so issued and sold, and the transactions relating
thereto as described herein may be consummated, at any time not
later than March 31, 1996.
<PAGE>
The Revenue Bonds will be issued under and secured by a
Trust Indenture (the "Trust Indenture") between the Authority and
a banking institution acting as trustee (the "Trustee") for the
owners from time to time of the Revenue Bonds. The Revenue
Bonds, which are anticipated to be fully subject to taxation
under applicable federal and state tax laws, will mature (subject
to prior redemption) on a date not more than 30 years after the
date on which they are initially issued.
The proceeds from the Authority's sale of the Revenue Bonds
will be deposited with the Trustee and will be applied by
Savannah to payment of the Cost of Construction (as defined in
the Agreement hereinafter referred to) of the Project.
It is proposed that the Revenue Bonds initially will bear
interest at an interest rate determined weekly until converted at
the direction of Savannah to a different interest rate mode
permitted under the Trust Indenture. Other permitted modes will
include interest periods of one month's, three months' and six
months' duration. Savannah also may convert the interest rate on
the Revenue Bonds to a fixed rate to their stated maturity.
Except as otherwise provided in the Trust Indenture, the interest
rate in each such mode will be determined by the Remarketing
Agent appointed under the Trust Indenture as the minimum rate of
interest necessary, in the judgment of the Remarketing Agent, to
enable the Remarketing Agent to sell the Revenue Bonds at a price
equal to the principal amount thereof plus accrued interest, if
any, thereon.
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It is currently contemplated that SunTrust Bank, Atlanta
(which bank is also expected to serve as placement agent for the
Revenue Bonds as hereinafter described) will initially serve as
Remarketing Agent. The Remarketing Agent for the Revenue Bonds
may be removed or may resign as provided in the Trust Indenture.
Savannah expects to review closely the determinations made by the
Remarketing Agent pursuant to the Trust Indenture and to measure
such determinations against, among other things, any available
published information concerning comparable securities.
It is proposed that Savannah will agree to pay the
Remarketing Agent an annual fee not exceeding 1/4 of 1% of the
principal amount of the Revenue Bonds outstanding.
The interest rate mode for the Revenue Bonds will be subject
to conversion from time to time at the option of Savannah as
provided in the Trust Indenture.
The Trust Indenture provides that the Revenue Bonds will be
subject to purchase on the demand of the owners thereof and to
mandatory purchase upon the occurrence of certain events, as set
forth in the Trust Indenture. Such mandatory purchase events
include conversion of the interest rate mode to a fixed rate of
interest to the stated maturity of the Revenue Bonds. The Trust
Indenture contemplates that the Remarketing Agent generally will
use its best efforts to sell any Revenue Bonds required to be
purchased.
The Revenue Bonds will be subject to redemption at the
direction of Savannah as provided in the Trust Indenture. It is
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<PAGE>
contemplated that the Revenue Bonds may be entitled to the
benefit of a mandatory redemption sinking fund calculated to
retire a portion of the initial aggregate principal amount of the
issue prior to maturity.
In connection with the issuance of the Revenue Bonds,
Savannah proposes to grant the Authority an estate for years in
the real property on which the Project is being constructed for a
term coinciding with the term of the Revenue Bonds. Savannah
additionally proposes to enter into a Lease Agreement with the
Authority (the "Agreement"). The Agreement will provide for the
Authority's lease of the Project to Savannah and Savannah's lease
of the Project from the Authority. Savannah will agree pursuant
to the Agreement to pay to the Trustee, as assignee of the
Authority, from time to time as the amount owed thereunder in
respect of the lease of the Project, amounts which, and at or
before times which, shall correspond to the payments with respect
to the principal of and premium, if any, and interest on the
Revenue Bonds whenever and in whatever manner the same shall
become due, whether at stated maturity, upon redemption or
declaration or otherwise, and the purchase price of Revenue Bonds
required to be purchased under the Trust Indenture. The
Agreement will also obligate Savannah to pay the fees and charges
of the Trustee and all costs of operating, maintaining and
repairing the Project.
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<PAGE>
The Agreement will provide that, upon its expiration or
termination, all right, title and interest in and to the Project
will revert to Savannah.
Savannah further proposes to enter into arrangements with
the Authority and SunTrust Bank, Atlanta (or other entity or
entities) acting as placement agent with respect to the issuance
and sale by the Authority of the Revenue Bonds. Pursuant to such
arrangements, the placement agent is to agree to use its best
efforts to arrange for the sale of the Revenue Bonds at a
purchase price of 100% of the principal amount thereof, and
Savannah will pay the placement agent's fee for its services in
an amount not exceeding 1% of the principal amount of the Revenue
Bonds.
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