THIS INSTRUMENT PREPARED BY
XXXXXXX X. XXXXXXX, ESQUIRE
XXXXXXX XXXX, A PROFESSIONAL CORP.
0000 XXXXXXXX XXXXXXXXX, XX. 000
XXXX XXXXX, XXXXXXXX 00000
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A PUBLIC UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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OLD DOMINION ELECTRIC COOPERATIVE,
GRANTOR
TO
SUNTRUST BANK
(Successor by Merger to Crestar Bank),
TRUSTEE
------------------------
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of November 1, 2001
----------------------
Supplemental to the Indenture of Mortgage and Deed of Trust
Dated as of May 1, 1992
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A Mortgage of Both Real and Personal Property
THIS INSTRUMENT IS EXEMPT FROM RECORDATION TAX PURSUANT TO VIRGINIA CODE
SECTION 58.1-803.D. RECORDATION TAX HAS BEEN PAID IN THE OFFICE OF THE CLERK OF
THE CIRCUIT COURT FOR HALIFAX COUNTY, VIRGINIA ON A SECOND SUPPLEMENTAL
INDENTURE RECORDED IN DEED BOOK ___, PAGE ___
TWELFTH SUPPLEMENTAL INDENTURE
THIS TWELFTH SUPPLEMENTAL INDENTURE, dated as of November 1, 2001 (the
"Twelfth Supplemental Indenture"), between Old Dominion Electric Cooperative, a
Virginia utility aggregation cooperative (the "Company"), whose mailing address
and address of its chief executive office is Innsbrook Corporate Center, 0000
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000, and SunTrust Bank, a Georgia
banking corporation and successor by merger to Crestar Bank, as trustee (the
"Trustee"), having a corporate trust office at 000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx,
Corporate Trust Administration, Richmond, Virginia 23219.
WHEREAS, the Company has heretofore executed and delivered an Indenture of
Mortgage and Deed of Trust, dated as of May 1, 1992 (the "Original Indenture"),
to secure, as provided therein, Bonds, to be issued in one or more series as
provided in the Original Indenture, as supplemented, modified or amended (the
Original Indenture as so supplemented, modified or amended and in effect from
time to time, the "Indenture"); and
WHEREAS, the Original Indenture was recorded among the land records in the
counties of Halifax, Louisa, Spotsylvania and Orange, Virginia, and a UCC Form 1
concerning the Original Indenture was recorded among the financing statement
records at the Virginia State Corporation Commission and the Counties of
Henrico, Halifax, Louisa, Spotsylvania and Orange, Virginia; and
WHEREAS, the Company has heretofore executed and delivered a First
Supplemental Indenture, dated as of August 1, 1992 (hereinafter the "First
Supplemental Indenture"), its Second Supplemental Indenture, dated as of
December 1, 1992 (hereinafter called the "Second Supplemental Indenture"), its
Third Supplemental Indenture, dated as of May 1, 1993 (hereinafter called the
"Third Supplemental Indenture"), its Fourth Supplemental Indenture, dated as of
December 15, 1994 (hereinafter called the "Fourth Supplemental Indenture"), its
Fifth Supplemental Indenture, dated as of February 29, 1996 (hereinafter called
the "Fifth Supplemental Indenture"), its Sixth Supplemental Indenture, dated as
of November 28, 1997 (hereinafter called the "Sixth Supplemental Indenture"),
its Seventh Supplemental Indenture, dated as of November 1, 1998 (hereinafter
called the "Seventh Supplemental Indenture"), its Eighth Supplemental Indenture,
dated as of November 30, 1998 (hereinafter called the "Eighth Supplemental
Indenture"), its Ninth Supplemental Indenture, dated as of November 1, 1999
(hereinafter called the "Ninth Supplemental Indenture"), its Tenth Supplemental
Indenture, dated as of November 1, 2000 (hereinafter called the "Tenth
Supplemental Indenture"), and its Eleventh Supplemental Indenture, dated as of
September 1, 2001 (hereinafter called the "Eleventh Supplemental Indenture"),
supplementing the Original Indenture, each of which, with the exception of the
Fourth Supplemental Indenture, provided for the creation of a new series of
Bonds and, some cases, subjected, or intended to subject, to the lien of the
Indenture certain property described therein; and
WHEREAS, each of the above-referenced supplemental indentures to the
Original Indenture were recorded among the land records for the counties of
Halifax, Louisa, Spotsylvania and Orange, Virginia and among the financing
statement records at the Virginia State Corporation Commission and the Counties
of Henrico, Halifax, Louisa, Spotsylvania and Orange, Virginia, which are all of
the recording offices in which this Twelfth Supplemental Indenture will be
recorded; and
1
WHEREAS, pursuant to the Original Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture,
the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth
Supplemental Indenture, the Tenth Supplemental Indenture, and the Eleventh
Supplemental Indenture there have been executed, authenticated, delivered and
issued and there are now outstanding First Mortgage Bonds of the series and in
the principal amount as follows:
Series Principal Amount Issued Principal Amount Outstanding
-------------------------------------- ----------------------- ----------------------------
7.27% First Mortgage $ 50,000,000 $ 0
Bonds, 1992 Series A,
Due December 1, 1997
7.97% First Mortgage 150,000,000 56,322,000
Bonds, 1992 Series A,
Due December 1, 2002
8.76% First Mortgage 350,000,000 176,555,000
Bonds, 1992 Series A,
Due December 1, 2022
First Mortgage Bonds, 1,203,638 0
1992 Series B,
Due September 15, 1992
First Mortgage Bonds, 1,203,637 0
1992 Series B,
Due December 15, 1992
First Mortgage Bonds, 1,203,637 0
1992 Series B,
Due March 15, 1993
First Mortgage Bonds, 1,203,638 0
1992 Series B,
Due June 15, 1993
First Mortgage Bonds, l,203,638 0
1992 Series B,
Due September 15, 1993
2
Series Principal Amount Issued Principal Amount Outstanding
------ ----------------------- ----------------------------
First Mortgage Bonds, 1,203,637 0
1992 Series B,
Due December 15, 1993
First Mortgage Bonds, 392,375 0
1992 Series B,
Due March 15, 1994
First Mortgage Bonds, 392,376 0
1992 Series B,
Due June 15, 1994
First Mortgage Bonds, 392,376 0
1992 Series B,
Due September 15, 1994
First Mortgage Bonds, 392,376 0
1992 Series B,
Due December 15, 1994
First Mortgage Bonds, 392,375 0
1992 Series B,
Due March 15, 1995
First Mortgage Bonds, 392,376 0
1992 Series B,
Due June 15, 1995
First Mortgage Bonds, 392,376 0
1992 Series B,
Due September 15, 1995
First Mortgage Bonds, 392,376 0
1992 Series B,
Due December 15, 1995
First Mortgage Bonds, 392,375 0
1992 Series B,
Due March 15, 1996
First Mortgage Bonds, 392,376 0
1992 Series B,
Due June 15, 1996
First Mortgage Bonds, 392,376 0
1992 Series B,
3
Series Principal Amount Issued Principal Amount Outstanding
------ ----------------------- ----------------------------
Due September 15, 1996
First Mortgage Bonds, 392,376 0
1992 Series B, Due
December 15,1996
4.90% First Mortgage 1,025,000 0
Bonds, 1992 Series C,
Due December 1, 1997
5.20% First Mortgage 1,075,000 0
Bonds, 1992 Series C,
Due December 1, 1998
5.40% First Mortgage 1,130,000 0
Bonds, 1992 Series C,
Due December 1, 1999
5.50% First Mortgage 1,190,000 0
Bonds, 1992 Series C,
Due December 1, 2000
5.70% First Mortgage 1,255,000 1,255,000
Bonds, 1992 Series C,
Due December 1, 2001
5.90% First Mortgage 1,330,000 1,330,000
Bonds, 1992 Series C,
Due December 1, 2002
6.00% First Mortgage 1,405,000 1,405,000
Bonds, 1992 Series C,
Due December 1, 2003
6.10% First Mortgage 1,495,000 1,495,000
Bonds, 1992 Series C,
Due December 1, 2004
6.35% First Mortgage 5,060,000 5,060,000
Bonds, 1992 Series C,
Due December 1, 2007
6.50% First Mortgage 10,845,000 10,845,000
Bonds, 1992 Series C,
Due December 1, 2012
4
Series Principal Amount Issued Principal Amount Outstanding
------ ----------------------- ----------------------------
6.00% First Mortgage 34,400,000 34,400,000
Bonds, 1992 Series C,
Due December 1, 2022
7.48% First Mortgage 130,000,000 125,300,000
Bonds, 1993 Series A,
Due December 1, 2013
7.78% First Mortgage 120,000,000 18,500,000
Bonds, 1993 Series A,
Due December 1, 2023
First Mortgage Bonds 25,565,962 0
1996 Series A,
Due February 28, 1997
First Mortgage Bonds 581,032 0
1996 Series B,
Due January 5, 1998
First Mortgage Bonds 25,505,428 34,424,401
1996 Series B,
Due December 15, 2018
4.90% First Mortgage 1,025,000 1,025,000
Bonds, 1997 Series A,
Due December 1, 2001
4.25% First Mortgage Bonds 1,075,000 1,075,000
1998 Series A,
Due December 1, 2002
4.25% First Mortgage Bonds 5,000,000 5,000,000
1998 Series B,
Due December 1, 2002
5.25% First Mortgage Bonds 1,130,000 1,130,000
1999 Series A,
Due December 1, 2002
5.125% First Mortgage Bonds 2000 1,190,000 1,190,000
Series A,
Due December 1, 2002
6.25% 2001 Series A Bonds, 215,000,000 215,000,000
Due June 1, 2011
5
WHEREAS, the Board of Directors of the Company has established the 2001
Series B Bonds and the Board of Directors of the Company has authorized the
issuance thereof, and the Company has complied or will comply with all
provisions required to issue Additional Bonds provided for in the Original
Indenture; and
WHEREAS, the Company desires to execute and deliver this Twelfth
Supplemental Indenture, in accordance with the provisions of the Indenture, for
the purposes of providing for the creation of a new series of Bonds, designating
the series to be created and specifying the form and provisions of the Bonds of
the new series; and
WHEREAS, Section 13.01 of the Indenture provides that, without the consent
of the Holders of any of the Bonds at the time Outstanding, the Company, when
authorized by a Board Resolution, and the Trustee may enter into a Supplemental
Indenture for the purposes and subject to the conditions set forth in such
Section 13.01; and
WHEREAS, the Company proposes to supplement and amend the Indenture as
provided herein in complaince with Sections 13.01 thereof; and
WHEREAS, all acts and proceedings required by law and by the Articles of
Incorporation and Bylaws of the Company necessary to secure the payment of the
principal and Redemption Price of and interest on the 2001 Series B Bonds, to
make the 2001 Series B Bonds to be issued hereunder, when executed by the
Company, authenticated and delivered by the Trustee and duly issued, the valid,
binding and legal obligations of the Company, and to constitute the Indenture a
valid and binding mortgage for the security of all of the Bonds prior to the
Release Date, in accordance with its and their terms, have been done and taken;
and the execution and delivery of this Twelfth Supplemental Indenture has been
in all respects duly authorized;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE WITNESSETH, that, to
secure the payment of the principal of (and premium, if any) and interest on the
Outstanding Secured Bonds until the Release Date, to confirm the lien of the
Indenture upon the Trust Estate mentioned therein including all property
purchased, constructed or otherwise acquired by the Company since the date of
execution of the Original Indenture until the Release Date, to secure
performance of the covenants therein and herein contained, to declare the terms
and conditions on which the Outstanding Secured Bonds are secured, and in
consideration of the premises thereof and hereof, the Company by these presents
does grant, bargain, sell, alienate, remiss, release, convey, assign, transfer,
mortgage, hypothecate, pledge, set over and confirm to the Trustee, in trust,
all property, rights, privileges and franchises (other than Excepted Property)
of the Company of the character described in the Granting Clauses of the
Indenture, including all such property, rights, privileges and franchises
acquired since the date of execution of the Original Indenture, including,
without limitation, all of those fee and leasehold interests in real property,
if any, which may hereafter be constructed or acquired by it, but subject to all
exceptions, reservations and matters of the character therein referred to, and
expressly excepting and excluding from the lien and operation of the Indenture
all properties of the character specifically excepted by paragraphs (A) through
(K) of "Excepted Property" in the Indenture to the extent contemplated thereby,
and all property heretofore released or otherwise disposed of pursuant to the
provisions of the Indenture.
6
PROVIDED, HOWEVER, that (i) if, upon the occurrence of an Event of Default,
the Trustee, or any separate trustee or co-trustee appointed under Section 10.14
of the Indenture or any receiver appointed pursuant to statutory provision or
order of court, shall have entered into possession of all or substantially all
of the Trust Estate, all the Excepted Property described or referred to in
paragraphs (A) through (G), inclusive, of "Excepted Property" in the Indenture
then owned or thereafter acquired by the Company shall immediately, and, in the
case of any Excepted Property described or referred to in paragraphs (H) through
(J) inclusive, of "Excepted Property" in the Indenture, upon demand of the
Trustee or such other trustee or receiver, become subject to the lien of the
Indenture to the extent permitted by law, and the Trustee or such other trustee
or receiver may, to the extent permitted by law, at the same time likewise take
possession thereof, and (ii) whenever all Events of Default shall have been
cured and the possession of all or substantially all of the Trust Estate shall
have been restored to the Company, such Excepted Property shall again be
excepted and excluded from the lien of the Indenture to the extent and otherwise
as hereinabove set forth and as set forth in the Indenture.
The Company may, however, pursuant to Granting Clause Third of the
Indenture, subject any Excepted Property to the lien of the Indenture, whereupon
the same shall cease to be Excepted Property.
TO HAVE AND TO HOLD all said property, rights, privileges and franchises of
every kind and description, real, personal or mixed, hereby and hereafter (by
Supplemental Indenture or otherwise) granted, bargained, sold, alienated,
remised, released, conveyed, assigned, transferred, mortgaged, hypothecated,
pledged, set over or confirmed as aforesaid, or intended, agreed or covenanted
so to be, together with all the appurtenances thereto appertaining unto the
Trustee and its successors and assigns forever.
SUBJECT, HOWEVER, to (i) Permitted Encumbrances (as defined in Section 1.01
of the Indenture), (ii) to the extent permitted by Section 14.06 of the
Indenture, as to property acquired since the date of execution of the Original
Indenture, (a) any duly recorded or perfected prior mortgage or other lien that
may exist thereon at the date of the acquisition thereof by the Company, and (b)
purchase money mortgages created by the Company at the time of acquisition
thereof, and (iii) defects of title to and encumbrances on property described in
Article IV of the First Supplemental Indenture.
BUT IN TRUST, NEVERTHELESS, with power of sale, for the equal and
proportionate benefit and security of the Holders from time to time of all the
Outstanding Secured Bonds without any priority of any such Bond over any other
such Bond and for the enforcement of the payment of such Bonds in accordance
with their terms.
UPON CONDITION that, until the happening of an Event of Default and subject
to the provisions of Article Six of the Indenture, the Company shall be
permitted to possess and use the Trust Estate, except cash, securities and other
personal property deposited, or required to be deposited, with the Trustee and
to explore for, mine, extract and dispose of coal, ore, gas, oil and other
minerals, to harvest standing timber and to receive and use the rents, issues,
profits, revenues and other income, products and proceeds of the Trust Estate.
7
AND IT IS HEREBY COVENANTED AND DECLARED that all the Bonds are to be
authenticated and delivered and the Trust Estate is to be held and applied by
the Trustee, subject to the further covenants, conditions and trusts set forth
in the Indenture, and the Company does hereby covenant and agree to and with the
Trustee, for the equal and proportionate benefit of all Holders of the Bonds as
follows:
ARTICLE I
Terms and Issue of the 2001 Series A BONDS
Section 1.01.
Section 1.02. (A) Terms of the 2001 Series B Bonds. There shall be hereby
established under the Indenture, as further amended by this Twelfth Supplemental
Indenture, a series of Bonds, known as and entitled "2001 Series B Bonds"
(collectively, the "2001 Series B Bonds"). The aggregate principal amount of
2001 Series B Bonds which may be authenticated and delivered and Outstanding is
limited to ONE MILLION TWO HUNDRED FIFTY-FIVE THOUSAND AND NO/00 DOLLARS
($1,255,000.00). The Trustee is hereby appointed as Authenticating Agent for the
2001 Series B Bonds.
The 2001 Series B Bonds shall be issuable in fully registered form without
coupons and in denominations of $5,000 and integral multiples thereof. Each 2001
Series B Bond shall be dated the date of its issuance and delivery. The 2001
Series B Bonds shall bear interest from their date payable on June 1, 2002, and
on December 1, 2002 of at the rate of 2.60% per annum and shall mature, subject
to prior redemption, on December 1, 2002.
The 2001 Series B Bonds shall be issued to and registered in the name of
the Authority and subsequently will be assigned by the Authority to The Bank of
New York, as trustee (the "Tax-Exempt Bond Trustee") pursuant to that certain
Indenture of Trust, dated as of December 1, 1992, between the Authority and the
Tax-Exempt Bond Trustee (as supplemental and amended by that certain Fifth
Supplemental Tax-Exempt Indenture of Trust, dated as of November 30, 2001, the
"Tax-Exempt Indenture") and will secure the obligations of the Company under the
Loan Agreement, as supplemented and amended by the Fifth Supplemental Loan
Agreement").
The 2001 Series B Bonds shall be lettered "A". The principal and interest
on the 2001 Series B Bonds shall be payable in lawful money of the United States
of America to the registered owner of the 2001 Series B Bonds or its assignee in
accordance with the provisions of the Fifth Supplemental Loan Agreement by wire
transfer or other method acceptable to such registered owner or its assignee in
funds which will be immediately available on the applicable principal and/or
Interest Payment Date or Redemption Date. Interest on the 2001 Series B Bonds
shall be payable without presentation of the 2001 Series B Bonds for payment.
Payment of the principal or Redemption Price of any 2001 Series B Bond shall be
made by the Company to the Tax-Exempt Bond Trustee upon presentation and
surrender of such Bond to the Trustee.
The Regular Record Date referred to in Section 3.09 of the Original
Indenture for the payment of interest on the 2001 Series B Bonds shall be the
fifteenth day (whether or not a business day) of the calendar month next
preceding such Interest Payment Date.
8
(B) Extraordinary Optional Redemption of 2001 Series B Bonds.
(i) The 2001 Series B Bonds are subject to extraordinary optional
redemption by the Company in whole at any time at a Redemption Price equal to
100% of the principal amount of such 2001 Series B Bonds, together with accrued
interest to the Redemption Date, upon the happening of any of the following
events:
(a) Damage or destruction of the Facilities by fire or other
casualty to such extent that, or loss of title to or use of substantially all of
the Facilities as a result of the exercise of the power of eminent domain or
failure of title which, in the opinion of both the Company (expressed in a
certificate of an Officer of the Company) and an Engineer, both filed with the
Trustee and the Tax-Exempt Bond Trustee and, that (1) the Facilities cannot be
reasonably repaired, rebuilt or restored within a period of 12 months to their
condition immediately preceding such damage or destruction, or (2) the Company
is prevented from carrying on its normal operations at the Facilities for a
period of 12 months; or
(b) A change in the Constitution of Virginia or of the United
States of America or a legislative or administrative action (whether local,
state or Federal) or a final decree, judgment or order of any court or
administrative body (whether local, state or Federal) contested by the Company
in good faith which causes (1) the Second Supplemental Loan Agreement or the
2001 Series B Bonds to become void or unenforceable or their performance in
accordance with the intent and purpose of the parties as expressed therein to be
impossible or (2) unreasonable burdens or excessive liabilities to be imposed on
the Authority or the Company.
(ii) The 2001 Series B Bonds are subject to extraordinary optional
redemption by the Company in part on any Interest Payment Date at a Redemption
Price equal to 100% of the principal amount of the 2001 Series B Bonds to be
redeemed, together with accrued interest to the Redemption Date in the event of
(i) damage or destruction to any part of the Facilities by fire or other
casualty or (ii) loss of title to any part of the Facilities as a result of the
exercise of eminent domain or failure of title, but only upon receipt by the
Trustee and the Tax-Exempt Bond Trustee of the following:
(a) A certificate of an Officer of the Company stating that there
has been either (x) damage or destruction of the Facilities by fire or other
casualty or (y) loss of title to any part of the Facilities as a result of the
exercise of eminent domain or failure of title and that it is not in the best
interest of the Company to rebuild such portion of the Facilities; and
(b) An Opinion of Counsel stating that the use of the
condemnation award or insurance proceeds resulting from such casualty or loss of
title, for purposes other than (x) rebuilding, restoring or repairing the
Facilities, or (y) redeeming the Series 2001 Tax-Exempt Bonds would cause the
interest paid or payable on the Series 2001 Tax-Exempt Bonds (other than
interest paid to any "substantial user" of the Facilities or "related person" as
those terms are defined in Section 147(a) of the Internal Revenue Code of 1986,
as amended (the "Code")) to be includable in the gross income of a holder of
Series 2001
9
Tax-Exempt Bonds for Federal income tax purposes under the Code (or for Virginia
state income tax purposes).
(iii) To exercise its option to redeem the 2001 Series B Bonds, in
whole under subsection (B)(i), above, or in part under subsection (B)(ii),
above, the Company shall comply with the provisions of Article Seven of the
Original Indenture, if applicable, and shall within 120 days after the event
permitting its exercise, file the required documentation with the Trustee and
the Tax-Exempt Bond Trustee and specify a date not more than 60 days thereafter
for making such payments.
(C) Mandatory Redemption of the 2001 Series B Bonds. The 2001 Series B
Bonds are subject to mandatory redemption in whole as promptly as possible, but
no later than 180 days after the occurrence of any Determination of Taxability,
at a Redemption Price equal to 100% of the principal amount of the 2001 Series B
Bonds to be redeemed plus interest accrued to the Redemption Date. For purposes
of this paragraph, "Determination of Taxability" shall mean (i) any enactment or
amendment of any applicable statute or regulation, or (ii) a final decree or
judgment of any federal court, a final determination by the United States
Internal Revenue Service or a final judgment or determination by any court or
agency of the Commonwealth of Virginia, with the effect that interest paid or
payable on the Series 2001 Tax-Exempt Bonds (other than interest paid to any
"substantial user" of the Facilities or "related person" as those terms are
defined in Section 147(a) of the Code) is or was includable in the gross income
of a Series 2001 Tax-Exempt Bondholder for Federal income tax purposes under the
Code (or for Virginia state income tax purposes). A Determination of Taxability
does not include any tax upon interest payable on exempt facility bonds under
Section 142 of the Code and other statutes and regulations in effect on the date
of issuance of the Series 2001 Tax-Exempt Bonds and does not include any change
in tax rates. A Determination of Taxability will be deemed to have occurred on
the date on which the Tax-Exempt Bond Trustee is first notified in writing of
any such enactment, amendment, judgment, decree or determination.
(D) Form of 2001 Series B Bonds. The 2001 Series B Bonds and the Trustee's
authentication certificate to be executed on the Bonds of said series shall be
substantially in the following form, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Original Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Bonds, as
evidenced by their execution of such Bonds:
10
FORM OF 2001 SERIES B BONDS
THIS 2001 SERIES B BOND, HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER SUCH ACT OR IN RELIANCE UPON AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
Old Dominion Electric Cooperative
First Mortgage Bond 2001 Series B,
Due December 1, 2002
No. $ 1,255,000.00
Old Dominion Electric Cooperative, a Virginia utility aggregation
cooperative (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to THE INDUSTRIAL DEVELOPMENT AUTHORITY OF HALIFAX
COUNTY, VIRGINIA, or registered assigns, the principal sum of One Million One
Hundred Fifty-Five Thousand and xx/100 Dollars on December 1, 2002, and to pay
interest (computed on the basis of a 360-day year of twelve 30-day months)
thereon from the date of this Bond or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually commencing
on June 1, 2001 and December 1, 2001, at the rate of 2.60% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture (as defined herein), be paid to the Person in whose
name this Bond is registered on the date of business on the Regular Record Date
for such interest, which shall be the fifteenth day (whether or not a business
day), of the calendar month next proceeding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Bond is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Bonds of this series
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the provisions of the
Indenture and acceptable to the Holder hereof.
If any principal of or premium, if any, or interest on this Bond is not
paid when due (whether at maturity, upon acceleration or call for redemption or
otherwise), then the overdue installments of principal and, to the extent
permitted by law, interest shall bear interest until paid at the interest rate
borne by this Bond.
The principal of and premium, if any, and interest on this Bond shall be
payable in lawful money of the United States of America to the registered owner
hereof in accordance with the provisions of the Loan Agreement (as defined
herein) by wire transfer or other method acceptable to such registered owner in
funds which will be immediately available on
11
the applicable principal and/or interest payment date or redemption date.
Interest on this Bond shall be payable without presentation hereof. Payment of
the principal and premium, if any, on this Bond shall be made by the Company to
the holder hereof upon presentation and surrender of such Bond to SunTrust Bank
(formerly Crestar Bank), Richmond, Virginia, as trustee ("Trustee") under the
Indenture.
This Bond is one of a duly authorized issue of Bonds of the Company
designated as its "First Mortgage Bonds" (herein called the "Bonds") issued and
to be issued in one or more series (which may have varying terms) under, and all
equally and ratably secured by, an Indenture of Mortgage and Deed of Trust,
dated as of May 1, 1992 (herein called the "Indenture"), between the Company and
the Trustee to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the description of the properties thereby
mortgaged, pledged and assigned, the nature and extent of the security and the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Bonds and of the terms upon
which the Bonds are, and are to be, authenticated and delivered. This Bond is
issued pursuant to the Twelfth Supplemental Indenture, dated as of November 1,
2001 ("Twelfth Supplemental Indenture"), between the Company and the Trustee.
The Bonds are being issued to refund the December 1, 2001, maturity of the
Company's First Mortgage Bonds, 1992 Series C ("1992 Series C Bonds). The 1992
Series C Bonds were issued by the Company to repay a loan from the Industrial
Development Authority of Halifax County, Virginia ("Authority") made to the
Company from the proceeds of the Authority's $60,210,000 Exempt Facility Revenue
Bonds (Old Dominion Electric Cooperative Project) Series 1992 ("1992 Tax-Exempt
Bonds") for the purpose of acquiring, constructing and equipping certain solid
waste and sewage disposal facilities ("Facilities") for the Company pursuant to
the Loan Agreement, dated as of December 1, 1992 ("Loan Agreement"), between the
Company and the Authority. The 1992 Tax-Exempt Bonds were issued pursuant to an
Indenture of Trust, dated as of December 1, 1992 (as amended and supplemented
"Tax-Exempt Indenture"), between the Authority and the Bank of New York, as
trustee ("Tax-Exempt Bond Trustee"). Pursuant to a Fifth Supplemental Loan
Agreement, dated as of November 30, 2001 ("Fifth Supplemental Loan Agreement"),
between the Authority and the Company and the Tax-Exempt Indenture, the
Authority has issued its Exempt Facility Refunding Revenue Bonds (Old Dominion
Electric Cooperative Project), Series 2001 ("2001 Tax-Exempt Bonds") in the
aggregate principal amount of $1,255,000, under that certain Fifth Supplemental
Tax-Exempt Indenture, dated as of November 30, 2001 ("Forth Supplemental
Tax-Exempt Indenture"), between the Authority and the Tax-Exempt Trustee.
If at any time the amount held by the Tax-Exempt Bond Trustee in the Bond
Fund, as defined in the Tax-Exempt Indenture, should be sufficient to pay at the
times required the principal of, and premium, if any, and interest on the 2001
Tax-Exempt Bonds then remaining unpaid and to pay all fees and expenses of the
Tax-Exempt Bond Trustee accrued and to accrue through final payment of the 2001
Tax-Exempt Bonds, the Company shall not be obligated to make any further
payments hereunder, except to the extent losses may be incurred in connection
with investment of moneys in the Bond Fund.
The Authority, by the execution of the Fifth Supplemental Tax-Exempt
Indenture and the assignment form at the foot of this Bond ("Assignment"), is
assigning this Bond and the payments thereon to the Tax-Exempt Trustee, acting
pursuant to the Fifth Supplemental Tax-Exempt Indenture, as security for the
2001 Tax-Exempt Bonds. Payments of principal of, and premium, if any, and
interest on this Bond shall be made directly to the Tax-Exempt Bond
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Trustee for the account of the Authority pursuant to such assignment and applied
only to the principal of, and premium, if any, and interest on the 2001
Tax-Exempt Bonds. All obligations of the Company hereunder shall terminate when
all sums due and to become due pursuant to the Fifth Supplemental Tax-Exempt
Indenture, this Bond, the Fifth Supplemental Loan Agreement and the 2001
Tax-Exempt Bonds have been paid or provided for in full.
The Bond is subject to extraordinary optional redemption by the Company in
whole at any time at a Redemption Price equal to 100% of the principal amount of
such Bonds, together with accrued interest to the Redemption Date, upon the
happening of any of the following events:
(a) Damage or destruction of the Facilities by fire or other
casualty to such extent that, or loss of title to or use of substantially all of
the Facilities as a result of the exercise of the power of eminent domain or
failure of title which, in the opinion of both the Company (expressed in a
certificate of an Officer of the Company) and an Engineer, both filed with the
Trustee and the Tax-Exempt Bond Trustee, (1) the Facilities cannot be reasonably
repaired, rebuilt or restored within a period of 12 months to their condition
immediately preceding such damage or destruction, or (2) the Company is
prevented from carrying on its normal operations at the Facilities for a period
of 12 months; or
(b) A change in the Constitution of Virginia or of the United
States of America or a legislative or administrative action (whether local,
state or Federal) or a final decree, judgment or order of any court or
administrative body (whether local, state or Federal) contested by the Company
in good faith which causes (1) the Fifth Supplemental Loan Agreement or the 2001
Tax-Exempt Bonds to become void or unenforceable or their performance in
accordance with the intent and purpose of the parties as expressed therein to be
impossible or (2) unreasonable burdens or excessive liabilities to be imposed on
the Authority or the Company.
The Bond is subject to extraordinary optional redemption by the Company in
part on any Interest Payment Date at a Redemption Price equal to 100% of the
principal amount of the Bonds to be redeemed, together with accrued interest to
the Redemption Date in the event of (i) damage or destruction to any part of the
Facilities by fire or other casualty or (ii) loss of title to any part of the
Facilities as a result of the exercise of eminent domain or failure of title,
but only upon receipt by the Trustee and the Tax-Exempt Bond Trustee of the
following:
(A) A certificate of an Officer of the Company stating that there has been
either (x) damage or destruction of the Facilities by fire or other casualty or
(y) loss of title to any part of the Facilities as a result of the exercise of
eminent domain or failure of title and that it is not in the best interests of
the Company to rebuild such portion of the Facilities; and
(B) An opinion of counsel stating that the use of the condemnation award or
insurance proceeds resulting from such casualty or loss of title, for purposes
other than (x) rebuilding, restoring or repairing the Facilities, or (y)
redeeming the 2001 Tax-Exempt Bonds would cause the interest paid or payable on
the 2001 Tax-Exempt Bonds (other than interest paid to any "substantial user" of
the Facilities or "related person" as those terms are defined in Section 147(a)
of the Internal Revenue Code of 1986, as amended, (the "Code")) to be
13
includable in the gross income of a holder of the 2001 Tax-Exempt Bonds for
federal income tax purposes under the Code (or for Virginia state income tax
purposes).
To exercise such right of extraordinary redemption in whole or in part, the
Company shall comply with the provisions of Article Seven of the Indenture, if
applicable, and shall within 120 days after the event permitting its exercise,
file the required documentation with the Trustee and the Tax-Exempt Bond Trustee
and specify a date not more than 60 days thereafter for making such payments.
The Bonds are subject to mandatory redemption in whole as promptly as
possible, but not later than 180 days after the occurrence of any Determination
of Taxability (as defined in the Tax-Exempt Indenture) at a Redemption Price
equal to 100% of the principal amount of the Bonds to be redeemed plus interest
accrued to the Redemption Date.
If the Bond is called for redemption, the Company has covenanted to cause
notice of the call for redemption to be given to each Holder of the Bond to be
redeemed at such Xxxxxx's address as the same shall last appear upon the Bond
Register, by first class mail at least 35 and no more than 60 days prior to the
Redemption Date.
If an Event of Default with respect to the Bond shall occur and be
continuing, the principal of the Bond may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of Bonds under the Indenture at any time
by the Company with the consent of the Holders of a majority in aggregate
principal amount of Bonds of all series at the time outstanding affected by such
modification. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of Bonds at the time outstanding, on behalf of the
Holders of all Bonds to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Bond shall be
conclusive and binding upon such Holder and upon all future Holders of this Bond
and of any Bond issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Bond at the times, places and rates, and in the coin or
currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register, upon
surrender of this Bond for registration of transfer at the office or agency
maintained by the Bond Registrar in Richmond, Virginia, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Bond Registrar duly executed by the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Bonds of this
series or
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authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Bonds of this series are issuable only in registered form without
coupons in denominations of $5,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Bonds of this series are exchangeable for a like aggregate principal amount of
Bonds of this series of a different authorized denomination, but of the same
maturity, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer and
subject to the Assignment, the Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name this Bond is registered as the
owner hereof for all purposes, whether or not this Bond be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless the context suggest otherwise, all capitalized terms used
herein and not otherwise defined shall have the same meaning assigned to them in
the Indenture.
IN witness thereof, the Company has caused this Bond to be duly
executed.
Dated:
------------------------
OLD DOMINION ELECTRIC
COOPERATIVE
By: SPECIMAN
-----------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to
in the within-mentioned Indenture.
SUNTRUST BANK
(formerly Crestar Bank),
a Georgia banking
corporation, as Trustee
By: SPECIMAN
---------------------------
Authorized Signatory
15
ASSIGNMENT
The Industrial Development Authority of Halifax County, Virginia (the
"Authority"), hereby irrevocably assigns without recourse the foregoing Bond to
The Bank of New York, New York, New York (the "Tax-Exempt Bond Trustee"), as
trustee, acting pursuant to a Fifth Supplemental Indenture of Trust dated as of
November 30, 2001 (the "Fifth Supplemental Tax-Exempt Indenture"), between the
Authority and the Tax-Exempt Bond Trustee and hereby directs the Company, as the
issuer of this Bond, to make all payments of principal of, premium and interest
thereon directly to the Tax-Exempt Bond Trustee at its principal office in New
York, New York, or at such other place as the Tax-Exempt Bond Trustee may direct
in writing. Such assignment is made as security for the payment of the
Authority's $1,255,000 Exempt Facility Refunding Revenue Bonds (Old Dominion
Electric Cooperative Project), Series 2001, issued pursuant to the Tax-Exempt
Indenture.
INDUSTRIAL DEVELOPMENT AUTHORITY OF
HALIFAX COUNTY, VIRGINIA
By: SPECIMAN
-------------------------------
Chairman
ARTICLE II
PRINCIPAL AMOUNT PRESENTLY TO BE OUTSTANDING
Section 2.01. Principal Amount Presently To Be Outstanding. The total
aggregate principal amount of Bonds of the Company issued and outstanding and
presently to be issued and outstanding under the provisions of and secured by
the Indenture will be Six Hundred Ninety-Two Million Five Hundred Sixty-Six
Thousand Four Hundred and One Dollars ($692,566,401), namely Two Hundred
Thirty-Two Million Eight Hundred Seventy-Seven Thousand Dollars ($232,877,000)
principal amount of First Mortgage Bonds, 1992 Series A; Fifty-Five Million
Seven Hundred Ninety Thousand Dollars ($55,790,000) principal amount of First
Mortgage Bonds, 1992 Series C; One Hundred Forty-Three Million Eight Hundred
Thousand Dollars ($143,800,000) principal amount of First Mortgage Bonds, 1993
Series A; Thirty-Four Million Four Hundred Twenty-four Thousand Four Hundred and
One Dollars ($34,424,401) principal amount of First Mortgage Bonds, 1996 Series
B; One Million Twenty-Five Thousand Dollars ($1,025,000) principal amount of
First Mortgage Bonds, 1997 Series A; One Million Seventy-Five Thousand Dollars
($1,075,000) principal amount of First Mortgage Bonds, 1998 Series A; Five
Million Dollars ($5,000,000) principal amount of First Mortgage Bonds, 1998
Series B; One Million One Hundred Thirty Thousand Dollars ($1,130,000) principal
amount of First Mortgage Bonds, 1999 Series A; One Million One Hundred Ninety
Thousand Dollars ($1,190,000) principal amount of First Mortgage Bonds, 2000
Series A; Two Hundred Fifteen Million Dollars ($215,000,000) principal amount of
2001 Series A Bonds; and One Million Two Hundred Fifty-five Thousand Dollars
($1,255,000) to be issued pursuant to this Twelfth Supplemental Indenture upon
compliance by the Company with the provisions of Section 5.01 and any of 5.02,
5.03, or 5.04 of the Indenture.
16
ARTICLE III
MISCELLANEOUS
Section 3.01. This Twelfth Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture, and shall form
a part thereof, and the Indenture, as hereby supplemented and modified, is
hereby confirmed. Except to the extent inconsistent with the express terms
hereof, all of the provisions, terms, covenants and conditions of the Indenture
shall be applicable to the 2001 Series B Bonds to the same extent as if
specifically set forth herein. All capitalized terms used in this Twelfth
Supplemental Indenture shall be taken to have the same meanings as in the
Indenture, except in cases where the context clearly indicates otherwise.
Section 3.02. All recitals in this Twelfth Supplemental Indenture are made
by the Company only and not by the Trustee; and all of the provisions contained
in the Indenture, in respect of the rights, privileges, immunities, powers and
duties of the Trustee shall be applicable in respect hereof as fully and with
like effect as if set forth herein in full.
Section 3.03. Whenever in this Twelfth Supplemental Indenture any of the
parties hereto is named or referred to, this shall, subject to the provisions of
Articles Ten and Twelve of the Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements in this Twelfth
Supplemental Indenture contained by or on behalf of the Company, or by or on
behalf of the Trustee shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of such parties,
whether so expressed or not.
Section 3.04. Nothing in this Twelfth Supplemental Indenture, expressed or
implied, is intended, or shall be construed, to confer upon, or to give to, any
person, firm or corporation, other than the parties hereto and the Holders of
the Outstanding Bonds, any right, remedy or claim under or by reason of this
Twelfth Supplemental Indenture or any covenant, condition, stipulation, promise
or agreement hereof, and all the covenants, conditions, stipulations, promises
and agreements in this Twelfth Supplemental Indenture contained by or on behalf
of the Company shall be for the sole and exclusive benefit of the parties
hereto, and of the Holders of Outstanding Bonds.
Section 3.05. This Twelfth Supplemental Indenture may be executed in
several counterparts, each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts, or as many of them as the Company
and the Trustee shall preserve undestroyed, shall together constitute but one
and the same instrument.
Section 3.06. Although this Twelfth Supplemental Indenture is dated for
convenience and for the purpose of reference as of November 1, 2001, the actual
date or dates of execution by the Company and by the Trustee are as indicated by
their respective acknowledgments hereto annexed.
Section 3.07. To the extent permitted by applicable law, this Twelfth
Supplemental Indenture shall be deemed to be a Security Agreement and Financing
Statement whereby the Company grants to the Trustee a security interest in all
of the Trust Estate that is personal property or fixtures under the Uniform
Commercial Code, as adopted or hereafter adopted in one or more of
17
the states in which any part of the properties of the Company are situated. The
mailing address of the Company, as debtor, is Innsbrook Corporate Center, 0000
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000, and the mailing address of the
Trustee, as secured party, is SunTrust Bank, Attention: Corporate Trust
Administration, 000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Twelfth
Supplemental Indenture to be duly executed as of the day and year first above
written.
Company: OLD DOMINION ELECTRIC COOPERATIVE
Innsbrook Corporate Center
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
By:
------------------------------
Name:
Title:
Trustee: SUNTRUST BANK, as Trustee
000 Xxxx Xxxx Xxxxxx, 00xx Floor
Corporate Trust Administration
Xxxxxxxx, Xxxxxxxx 00000
By:
------------------------------
Name:
Title:
19
ACKNOWLEDGMENT
COMMONWEALTH OF VIRGINIA )
)
CITY/COUNTY OF HENRICO )
The foregoing instrument was acknowledged before me this day of
---
November, 2001, by Xxxxxx X. Xxxxxx, the Senior Vice President of Old Dominion
Electric Cooperative, a Virginia utility aggregation cooperative.
----------------------------------
Notary Public
My Commission expires:
ACKNOWLEDGMENT
COMMONWEALTH OF VIRGINIA )
)
CITY/COUNTY OF RICHMOND )
The foregoing instrument was acknowledged before me this day of
----
November, 2001, by , the Senior Vice President of SunTrust Bank, a
-----------
Georgia banking corporation, on behalf of the Bank.
----------------------------------
Notary Public
My Commission expires:
20