CERTIFICATE OF NOTIFICATION
Filed by
SAVANNAH ELECTRIC AND POWER COMPANY
Pursuant to order of the Securities and Exchange Commission dated March 28,
1996, in the matter of File No. 70-8753.
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Savannah Electric and Power Company (the "Company") HEREBY CERTIFIES to
said Commission, pursuant to Rule 24, that the transactions described in the
above-mentioned statement on Form U-1, as amended, were carried out in
accordance with the terms and conditions of and for the purposes represented by
the statement on Form U-1, as amended, and of said order with respect thereto.
Filed herewith are the following exhibits:
Exhibit A -- Lease Agreement between the Company and the
Savannah Economic Development Authority (the
"Authority"), dated as of March 1, 1996.
Exhibit B -- Trust Indenture of the Authority to The Bank
of New York, as Trustee, dated as of March 1,
1996, relating to the Revenue Bonds.
Exhibit C -- Opinion of Bouhan, Williams & Levy LLP, dated April 29,
1996.
Dated April 29,1996 SAVANNAH ELECTRIC AND POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit A
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
and
SAVANNAH ELECTRIC AND POWER COMPANY
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LEASE AGREEMENT
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Dated as of March 1, 1996
Relating to Savannah Economic Development Authority
Taxable Industrial Development Revenue Bonds
(Savannah Electric and Power Company Project)
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LEASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Lease Agreement)
ARTICLE I
DEFINITIONS.......................................................... 2
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..................................................... 5
SECTION 2.3. Establishment of Completion Date........... 5
ARTICLE III
LEASE OF THE PROJECT; PROVISIONS FOR PAYMENT
SECTION 3.1. Lease of the Project.................................... 6
SECTION 3.2. Lease Payments and Other Amounts Payable................ 6
SECTION 3.3. Obligation of the Company Unconditional................. 7
SECTION 3.4. Assignment and Pledge of Payments and
Rights Under the Agreement........................................... 7
SECTION 3.5. Letter of Credit........................................ 7
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project......................................... 8
SECTION 4.2. Indemnity Against Claims................................ 9
SECTION 4.3. The Company to Maintain Its Corporate
Existence; Conditions Under Which Exceptions
Permitted............................................................ 9
SECTION 4.4. Annual Statement........................................ 9
SECTION 4.5. Further Assurances and Corrective
Instruments.......................................................... 10
SECTION 4.6. Maintenance of Project by Company...................... 10
SECTION 4.7. Redemption or Purchase of Bonds......................... 10
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default....................................... 11
SECTION 5.2. Remedies on Default..................................... 12
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SECTION 5.3. Agreement to Pay Attorneys' Fees and
Expenses............................................................. 13
SECTION 5.4. No Additional Waiver Implied by One
Waiver............................................................... 13
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement.................................. 13
SECTION 6.2. Notices................................................. 13
SECTION 6.3. Binding Effect.......................................... 14
SECTION 6.4. Severability............................................ 14
SECTION 6.5. Amounts Remaining in the Bond Fund...................... 14
SECTION 6.6. Amendments.............................................. 14
SECTION 6.7. Execution in Counterparts............................... 14
SECTION 6.8. Applicable Law.......................................... 14
SECTION 6.9. Captions................................................ 14
SECTION 6.10. Other Financing........................................ 15
EXHIBIT A............................................................ 16
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LEASE AGREEMENT dated as of March 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;
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(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 March 1, 1996,
relating to Taxable Industrial Development Revenue Bonds, between the Issuer and
The Bank of New York, 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
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appointment of the Company to act as agent as aforesaid and all authority hereby
conferred are granted and 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
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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 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
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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).
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
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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.
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) and (ii) of Section 3.5(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.
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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 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
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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 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 request
the Trustee to 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:
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(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.
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
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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 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:
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(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 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
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<PAGE>
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.
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 100 Ashford Center North, Suite 520,
Atlanta, Georgia 30338 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.
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<PAGE>
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
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.
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<PAGE>
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
<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.
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Exhibit B
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
to
THE BANK OF NEW YORK,
Trustee
TRUST INDENTURE
Dated as of March 1, 1996
Relating to Savannah Economic Development Authority
Taxable 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 the Trust Indenture)
RECITALS............................................................. 1
ARTICLE I............................................................ 3
DEFINITIONS................................................. 3
ARTICLE II........................................................... 10
THE BONDS................................................... 10
SECTION 2.01. Authorized Amount of Bonds.......... 10
SECTION 2.02. Issuance of Bonds................... 10
SECTION 2.03. Form of Bonds....................... 14
SECTION 2.04. Details, Execution and Payment...... 15
SECTION 2.05. Authentication, Registration,
Exchange, Transfer and Ownership of Bonds.......... 16
SECTION 2.06. Delivery of First Series 1996
Bonds; Application of Proceeds..................... 18
SECTION 2.07. Temporary Bonds..................... 18
SECTION 2.08. Mutilated, Destroyed or Lost
Bonds.............................................. 19
SECTION 2.09. Destruction of Bonds................ 19
SECTION 2.10. Additional Bonds.................... 20
ARTICLE III.......................................................... 21
REDEMPTION OF BONDS BEFORE MATURITY......................... 21
SECTION 3.01. Redemption Dates and Prices......... 21
SECTION 3.02. Notice of Redemption................ 22
SECTION 3.03. Effect of Call for Redemption....... 23
SECTION 3.04. Partial Redemption.................. 23
SECTION 3.05. Funds in Trust; Unclaimed Funds..... 23
SECTION 3.06. Special Redemption.................. 24
SECTION 3.07. Sinking Fund........................ 24
ARTICLE IV........................................................... 26
CONVERSION OF INTEREST RATE; DEMAND PURCHASE OPTION......... 26
SECTION 4.01. Conversion of Interest Rate on
Optional Conversion Date........................... 26
SECTION 4.02. Mandatory Purchase Date............. 27
SECTION 4.03. Additional Notices.................. 28
SECTION 4.04. Demand Purchase Option.............. 28
SECTION 4.05. Funds for Purchase of Bonds......... 29
SECTION 4.06. Delivery of Purchased Bonds......... 29
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SECTION 4.07. Delivery of Proceeds of Sale of
Purchased Bonds.................................... 30
SECTION 4.08. Duties of Trustee and Tender Agent
with Respect to Purchase of Bonds.................. 30
ARTICLE V............................................................ 31
GENERAL COVENANTS........................................... 31
SECTION 5.01. Payment of Principal and Premium,
If Any, and Interest; Limited Obligation........... 31
SECTION 5.02. Performance of Covenants; Issuer.... 32
SECTION 5.03. Instruments of Further Assurance.... 32
SECTION 5.04. Recordation......................... 32
SECTION 5.05. Inspection of Project Books......... 32
SECTION 5.06. Rights Under Agreement.............. 32
SECTION 5.07. Designation of Additional Paying
Agents............................................. 33
SECTION 5.08. Existence of Issuer................. 33
ARTICLE VI........................................................... 33
REVENUES AND FUNDS.......................................... 33
SECTION 6.01. Source of Payment of Bonds.......... 33
SECTION 6.02. Creation of Bond Fund............... 33
SECTION 6.03. Payments into the Bond Fund......... 34
SECTION 6.04. Use of Moneys in the Bond Fund...... 34
SECTION 6.05. Custody of the Bond Fund............ 35
SECTION 6.06. Non-presentment of Bonds............ 35
SECTION 6.07. Moneys to Be Held in Trust.......... 36
SECTION 6.08. Repayment to the Company from the
Bond Fund.......................................... 36
SECTION 6.09. Letter of Credit.................... 36
SECTION 6.10. Creation of Construction Fund....... 37
SECTION 6.11. Payments into the Construction
Fund............................................... 37
SECTION 6.12. Disbursements from the Construction
Fund............................................... 37
SECTION 6.13. Completion of the Project........... 38
ARTICLE VII.......................................................... 39
INVESTMENTS................................................. 39
SECTION 7.01. Investment of Bond Fund and
Construction Fund Moneys........................... 39
SECTION 7.02. Permitted Investments............... 39
ARTICLE VIII......................................................... 40
RELEASE OF LIEN............................................. 40
SECTION 8.01. Release of Lien..................... 40
ARTICLE IX........................................................... 42
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<PAGE>
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND
BONDHOLDERS................................................. 42
SECTION 9.01. Events of Default................... 42
SECTION 9.02. Acceleration........................ 43
SECTION 9.03. Other Remedies...................... 44
SECTION 9.04. Legal Proceedings by Trustee........ 45
SECTION 9.05. Right of Bondholders to Direct
Proceedings........................................ 46
SECTION 9.06. Appointment of Receivers............ 46
SECTION 9.07. Waiver.............................. 46
SECTION 9.08. Application of Moneys............... 47
SECTION 9.09. Remedies Vested in Trustee.......... 48
SECTION 9.10. Rights and Remedies of
Bondholders........................................ 49
SECTION 9.11. Termination of Proceedings.......... 50
SECTION 9.12. Waivers of Events of Default........ 50
SECTION 9.13. Notice of Default under Section
9.01(d); Opportunity of Issuer and the
Company to Cure Such Default....................... 50
SECTION 9.14. References to Bank.................. 51
ARTICLE X............................................................ 51
THE TRUSTEE, THE TENDER AGENT AND THE REMARKETING
AGENT....................................................... 51
SECTION 10.01. Acceptance of the Trusts............ 51
SECTION 10.02. Fees, Charges and Expenses of
Trustee............................................ 55
SECTION 10.03. Notice to Bondholders if an Event
of Default Occurs.................................. 55
SECTION 10.04. Intervention by Trustee............. 55
SECTION 10.05. Successor Trustee................... 55
SECTION 10.06. Resignation by Trustee.............. 56
SECTION 10.07. Removal of Trustee.................. 56
SECTION 10.08. Appointment of Successor Trustee.... 56
SECTION 10.09. Concerning Any Successor Trustee.... 57
SECTION 10.10. Successor Trustee as Bond
Registrar, Custodian of Bond Fund and Paying
Agent.............................................. 57
SECTION 10.11. Trustee and Issuer Required to
Accept Directions and Actions of Company........... 57
SECTION 10.12. No Transfer of Letter of Credit
Held by the Trustee; Exception..................... 58
SECTION 10.13. Filing of Certain Continuation
Statements......................................... 58
SECTION 10.14. Tender Agent........................ 58
SECTION 10.15. Qualifications of Tender Agent;
Resignation; Removal............................... 59
SECTION 10.16. Remarketing Agent................... 60
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<PAGE>
SECTION 10.17. Qualifications of Remarketing
Agent; Resignation; Removal........................ 60
SECTION 10.18. Authentication of Bonds............. 61
SECTION 10.19. Several Capacities.................. 61
ARTICLE XI........................................................... 62
INDENTURES SUPPLEMENTAL HERETO.............................. 62
SECTION 11.01. Supplemental Indentures Not
Requiring Consent of Bondholders................... 62
SECTION 11.02. Supplemental Indentures Requiring
Consent of Bondholders............................. 63
SECTION 11.03. Trustee Authorized to Join in
Supplements; Reliance on Counsel................... 65
ARTICLE XII.......................................................... 65
AMENDMENT OF AGREEMENT...................................... 65
SECTION 12.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders................... 65
SECTION 12.02. Amendments, Etc., to Agreement
Requiring Consent of Bondholders................... 65
SECTION 12.03. Trustee Authorized to Join in
Amendments; Reliance on Counsel.................... 66
ARTICLE XIII......................................................... 66
MISCELLANEOUS............................................... 66
SECTION 13.01. Consents, Etc., of Bondholders...... 66
SECTION 13.02. Limitation of Rights................ 66
SECTION 13.03. Severability........................ 67
SECTION 13.04. Notices............................. 67
SECTION 13.05. Trustee as Paying Agent and Bond
Registrar.......................................... 67
SECTION 13.06. Payments Due on Saturdays, Sundays
and Holidays....................................... 67
SECTION 13.07. Counterparts........................ 68
SECTION 13.08. Applicable Provisions of Law........ 68
SECTION 13.09. Captions............................ 68
SECTION 13.10. Immunity of Members, Officers and
Employees of Issuer................................ 68
EXHIBIT "A".......................................................... 70
ADJUSTABLE RATE FORM OF BOND................................ 70
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............. 85
FORM OF VALIDATION CERTIFICATE.............................. 85
EXHIBIT "B".......................................................... 86
FIXED RATE FORM OF BOND..................................... 86
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............. 92
FORM OF VALIDATION CERTIFICATE.............................. 92
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<PAGE>
EXHIBIT "C".......................................................... 93
FORM OF NOTICE FROM TRUSTEE TO OWNER REGARDING CHANGE
IN DURATION OF INTEREST PERIOD.............................. 93
FORM OF OWNER ELECTION TO RETAIN BONDS UPON CHANGE IN
DURATION OF INTEREST PERIOD................................. 95
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<PAGE>
THIS TRUST INDENTURE made and entered into as of March 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 THE BANK OF NEW YORK, a banking corporation duly organized, existing and
authorized to accept and execute trusts of the character herein set out under
and by virtue of the laws of the State of New York, with its principal corporate
trust office located in New York, New York, as trustee (the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the Issuer has entered
into a Lease Agreement dated as of March 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 Taxable 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 Taxable
Industrial Development Revenue Bonds (Savannah Electric and Power Company
Project), First Series 1996, in the aggregate principal amount of $7,000,000
(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 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
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<PAGE>
(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 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);
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<PAGE>
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 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"
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<PAGE>
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 1980,
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 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
-4-
<PAGE>
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.
"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.
-5-
<PAGE>
"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.
"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, April 1 and October 1 in each year, commencing
on the April 1 or October 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
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<PAGE>
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 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) 20%, 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
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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;
(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
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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.
"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
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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 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 The Bank of New York, a New York banking
corporation, 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 Seven Million Dollars ($7,000,000), for
the purposes set forth in the Agreement. Said Bonds shall
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be designated "Savannah Economic Development Authority Taxable
Industrial Development Revenue Bonds (Savannah Electric and Power
Company 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 April, 2011.
(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 Interest Period at the rate in effect during
the immediately preceding Interest Period.
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(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 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
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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.
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
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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 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
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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 manual or facsimile signature of the
President or 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 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
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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 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
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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 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
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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
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 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
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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.
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
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certificate in triplicate describing the Bonds so destroyed, and one executed
certificate shall be filed with the Issuer and one 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:
(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
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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
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:
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Length of Fixed Rate
Period From Redemption Premium
Conversion Date as a Percentage of
Until Maturity First Day of Principal Amount of
(Expressed in Years) Redempton Period Bonds
More than 5 5th Anniversary of 2% declining by 1%
Conversion Date every year after the
5th Anniversary of
the Conversion Date
until reaching 0%,
and thereafter 0%
5 or less Not optionally
redeemable pursuant
to this paragraph
(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
April 1, 1997, and on each April 1 thereafter to and including April 1, 2010, 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
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
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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 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
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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 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 April 1,
1997, and on each succeeding April 1 to and including April 1, 2010, the
following principal amounts of such Bonds:
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April 1, Principal
of the year Amount
1997 $400,000
1998 $400,000
1999 $400,000
2000 $400,000
2001 $400,000
2002 $500,000
2003 $500,000
2004 $500,000
2005 $500,000
2006 $500,000
2007 $500,000
2008 $500,000
2009 $500,000
2010 $500,000
The remaining $500,000 principal amount of First Series 1996 Bonds is
scheduled to mature on April 1, 2011.
The Issuer shall have the option, exercisable through (or at the
direction of) the Company, to redeem on each April 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 April 1 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 April 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
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(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.
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:
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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 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
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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 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
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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 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.
(b) Bonds purchased with moneys described in Section
4.05(ii) hereof shall be delivered to the Trustee for
cancellation.
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(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 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
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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, 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.
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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 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
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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 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 Taxable 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
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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 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
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(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 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.
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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 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
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earnings are on deposit in the Bond Fund; and the Trustee is further hereby
instructed 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 Taxable 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 basis of any previous withdrawal from
the Construction Fund. Notwithstanding the foregoing provisions of this Section
6.12, no such disbursement
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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 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.
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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.
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;
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(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.
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,
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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 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
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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 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
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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
(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
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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 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
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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 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 event of default or shall impair any rights or remedies consequent
thereon.
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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 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,
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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
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
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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 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
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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, 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.
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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 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
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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 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
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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 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
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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.
(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 event of
default by the Issuer or by the Holders of at least
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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. In furtherance and not in limitation of the foregoing, the
Trustee shall have the right, but shall not be required, to receive an
opinion of counsel (who may be counsel to the Issuer or the Company) or
other evidence satisfactory to the Trustee with respect to compliance
with applicable securities laws in connection with registrations of
transfers of the Bonds.
(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 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
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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 corporate 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 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
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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.
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
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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.
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. The Bank of New York is hereby
appointed by the Issuer as the initial Tender Agent. The Issuer,
at the direction of the Company, shall appoint any successor
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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 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.
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
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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 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
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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 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
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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;
(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
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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 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
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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 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
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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 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 provided. If at any time the Issuer and the
Company shall
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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:
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.
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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 100 Ashford Center North, Suite 520, Atlanta,
Georgia 30338, 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 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
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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 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 limited 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.
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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 The Bank of New York, 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
THE BANK OF NEW YORK, as Trustee
By:
Attest: Title:
Title: ______________________
<PAGE>
EXHIBIT "A"
[ADJUSTABLE RATE FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF GEORGIA
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(Savannah Electric and Power Company Project)
FIRST SERIES 1996
Maturity Date: April 1, 2011 Dated Date: March 29, 1996
CUSIP: 804832 AF 0
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
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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 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
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of the exercise by the Company (hereinafter mentioned) of the
Conversion Option.
"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, April 1 and
October 1 in each year, commencing on the April 1 or October 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
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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, 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 March 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
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
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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 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
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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.
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
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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.
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
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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
(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
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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 101 Barclay Street - 7E, New York, New York
10286, Attention: Fiscal Agency 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 101 Barclay Street - 7E, New York, New York 10286, Attention: Fiscal Agency
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 February 26, 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 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
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the Company for the account of the Issuer and deposited in a special account
created by the Issuer and designated "Savannah Economic Development Authority
Taxable 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 "Taxable 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 Seven Million Dollars ($7,000,000) 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 March, 1996, by and between the Issuer and The Bank
of New York, 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. Capitalized terms used herein and not defined shall have the
meaning ascribed to them in the Indenture.
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The Issuer has entered into a Lease Agreement, dated as of March 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 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
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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 Redemption Premium as
Period From Conversion a Percentage of
Date Until Maturity First Day of Principal Amount of
(Expressed in Years) Redemption Period Bonds
More than 5 5th Anniversary of 2% declining by 1%
Conversion Date every year after the
5th Anniversary of the
Conversion Date until
reaching 0%, and
thereafter 0%
5 or less Not optionally
redeemable pursuant to
this paragraph
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 and
optional redemption, pursuant to the sinking fund requirements of Section 3.07
of the Indenture, on April 1, 1997, and on each April 1 thereafter to and
including April 1, 2010, 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
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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.
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.
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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 manual or
facsimile signature of its President or 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.
THE BANK OF NEW YORK,
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 25th day of March, 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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EXHIBIT "B"
[FIXED RATE FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF GEORGIA
SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY
TAXABLE 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 April, 2011 (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 New
York, New York, 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 April and October 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 April 1 or October 1 will, subject to
certain exceptions provided in the Indenture (hereinafter mentioned), be paid to
the person in whose name this Bond is registered at the close of business on the
record date,
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which shall be the March 15 or September 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 February 26, 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 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 Taxable 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 "Taxable 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 Seven Million Dollars ($7,000,000) 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
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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 March, 1996, by and between the Issuer and The Bank
of New York, 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 March 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 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,
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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 or
optional redemption, pursuant to the sinking fund requirements of Section 3.07
of the Indenture, on April 1, 1997, and on each April 1 thereafter to and
including April 1, 2010, 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 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
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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 New York, New York, 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 trans- feree, 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.
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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 manual or
facsimile signature of its President or 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.
THE BANK OF NEW YORK,
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 25th day of March, 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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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 Taxable Industrial Development Revenue Bonds
(Savannah Electric and Power Company Project), First
Series 1996
The undersigned officer of The Bank of New York, 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 March
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) day preceding such Tender Date (or,
if such day is not a Business Day, the next preceding Business Day);
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(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 _________________, ______.
THE BANK OF NEW YORK, as Trustee
Title:
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ATTACHMENT TO EXHIBIT "C"
FORM OF OWNER ELECTION
TO RETAIN BONDS UPON
CHANGE IN DURATION OF INTEREST PERIOD
THE BANK OF NEW YORK, [or Successor]
as Trustee
Attention: Corporate Trust Department
================================
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Re: $____________ Savannah Economic Development Authority
Taxable 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:
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Exhibit C
Bouhan, Williams & Levy LLP
Post Office Box 2139
Savannah, GA 31498-1001
912/236-2491
April 29, 1996
Securities and Exchange Commission
Washington, D. C. 20549
Re: Statement on Form U-1 of
Savannah Electric and Power Company
(herein called the "Company")
File No. 70-8753
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Gentlemen:
We have read the statement on Form U-1, as amended, referred to above
and are furnishing this opinion with respect to the transactions described in
such statement relating to the issuance of the Revenue Bonds (as defined
therein).
We are of the opinion that:
(a) the Company is duly organized and validly existing as a
corporation under the laws of the State
of Georgia;
(b) all State laws applicable to such transactions have been
complied with;
(c) the Company's obligations with respect to the Revenue Bonds
are valid and binding obligations
of the Company in accordance with their terms; and
(d) the consummation of such transactions did not violate the
legal rights of the holders of any securities issued by the
Company or any associate company thereof.
We hereby give our written consent to the use of this opinion in
connection with the above-mentioned statement on Form U-1 and to the filing
thereof with the Commission at the time of the filing of the certificate
pursuant to Rule 24.
Very truly yours,
/s/Bouhan, Williams & Levy LLP
