Exhibit 4.4
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THIRD SUPPLEMENTAL INDENTURE
dated as of [________], 1999
to
TRUST INDENTURE
dated as of May 21, 1999
among
LSP BATESVILLE FUNDING CORPORATION,
LSP ENERGY LIMITED PARTNERSHIP
and
THE BANK OF NEW YORK, as Trustee
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THIRD SUPPLEMENTAL INDENTURE, dated as of [_________], 1999 (this
"Third Supplemental Indenture"), to the Trust Indenture, dated as of May 21,
1999 (the "Original Indenture"), among LSP BATESVILLE FUNDING CORPORATION, a
Delaware corporation (together with its successors and assigns, the "Funding
Corporation"), LSP ENERGY LIMITED PARTNERSHIP, a Delaware limited partnership
(together with its successors and assigns, the "Partnership"), and THE BANK OF
NEW YORK, a New York banking corporation (the "Trustee").
WHEREAS, the Funding Corporation, the Partnership and the Trustee
have heretofore executed and delivered the Original Indenture to provide for the
issuance from time to time of Bonds (as defined in the Original Indenture) of
the Funding Corporation and the Partnership, to be issued in one or more series;
WHEREAS, Sections 2.1, 2.3 and 12.1 of the Original Indenture
provide, among other things, that the Funding Corporation, the Partnership and
the Trustee may enter into indentures supplemental to the Original Indenture
for, among other things, the purpose of establishing the designation, form,
terms and provisions of Bonds of any series as permitted by Sections 2.1, 2.3
and 12.1 of the Original Indenture;
WHEREAS, the Funding Corporation and the Partnership (i) desire the
issuance of a series of Bonds to be designated as hereinafter provided, which
Bonds will, pursuant to the terms of the exchange offer described in the
prospectus dated [_______], 1999, be offered to the Holders of the Partnership's
and the Funding Corporation's Series A Senior Secured Bonds due 2014 in exchange
therefor, and (ii) have requested the Trustee to enter into this Third
Supplemental Indenture for the purpose of establishing the designation, form,
terms and provisions of the Bonds of such series;
WHEREAS, all action on the part of the Funding Corporation and the
Partnership necessary to authorize the issuance of said Bonds under the Original
Indenture and this Third Supplemental Indenture (the Original Indenture, as
supplemented by this Third Supplemental Indenture, being hereinafter called the
"Indenture") has been duly taken.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the designation, form, terms and
provisions of, and to authorize the authentication and delivery of, said Bonds,
and in consideration of the acceptance of said Bonds by the Holders thereof and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
(a) Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Original Indenture.
(b) The rules of interpretation set forth in the Original Indenture
shall be applied hereto as if set forth in full herein.
(c) For all purposes of this Third Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following respective meanings (such meanings
shall apply equally to both the singular and plural forms of the respective
terms): "Make-Whole Premium" means an amount equal to the Discounted Present
Value calculated for any Series C Bond subject to redemption less the unpaid
principal amount of such Bond; provided that the Make-Whole Premium shall not be
less than zero. For purposes of this definition, the "Discounted Present Value"
of any Series C Bond subject to redemption shall be equal to the discounted
present value of all principal and interest payments scheduled to become due in
respect of such Series C Bond after the date of such redemption, calculated
using a discount rate equal to the sum of (1) the yield to maturity on the
United States treasury security having an average life equal to the remaining
average life of such Series C Bond and trading in the secondary market at the
price closest to par and (2) 30 basis points; provided, however, that if there
is no United States treasury security having an average life equal to the
remaining average life of such Series C Bond, such discount rate shall be
calculated using a yield to maturity interpolated or extrapolated on a
straight-line basis (rounding to the nearest month, if necessary) from the
yields to maturity for two United States treasury securities having average
lives most closely corresponding to the remaining average life of such Series C
Bond and trading in the secondary market at the price closest to par.
"Series C Bonds" shall have the meaning ascribed thereto in Section
2.1(a) hereof.
ARTICLE II.
THE TERMS OF THE BONDS
Section 2.1 SECTION Terms of 7.164% Series C Senior Secured Bonds
due January 15, 2014.
(a) There is hereby created one series of Bonds designated: 7.164%
Series C Senior Secured Bonds due January 15, 2014, in the aggregate principal
amount of $150,000,000 (the "Series C Bonds"). The Series C Bonds may forthwith
be executed by the Funding Corporation and the Partnership and delivered to the
Trustee for authentication and delivery by the Trustee in accordance with the
provisions of Section 2.4 of the Original Indenture.
(b) Each of the Series C Bonds shall have and be subject to such
other terms as provided in the Indenture and shall be evidenced by one or more
Bonds in the form of Exhibit G to the Original Indenture.
Section 2.2 SECTION Interest and Principal.
Each Series C Bond shall bear interest on the unpaid principal
amount thereof from time to time outstanding from the date thereof until such
amount is paid in full at a rate of
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7.164% per annum. The principal amount of each Series C Bond shall be due and
payable in installments as set forth below:
Scheduled Percentage of
Payment Principal
Date Amount Payable
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July 15, 2001 2.75%
January 15, 2002 2.75%
July 15, 2002 2.30%
January 15, 2003 2.30%
July 15, 2003 2.45%
January 15, 2004 2.45%
July 15, 2004 2.60%
January 15, 2005 2.60%
July 15, 2005 3.80%
January 15, 2006 3.80%
July 15, 2006 4.15%
January 15, 2007 4.15%
July 15, 2007 4.20%
January 15, 2008 4.20%
July 15, 2008 4.35%
January 15, 2009 4.35%
July 15, 2009 4.50%
January 15, 2010 4.50%
July 15, 2010 4.70%
January 15, 2011 4.70%
July 15, 2011 5.10%
January 15, 2012 5.10%
July 15, 2012 5.10%
January 15, 2013 5.10%
July 15, 2013 4.00%
January 15, 2014 4.00%
Payment of principal of and interest on each Bond of the series
created hereby shall be made (a) if the Funding Corporation or the Partnership
so elects, by check mailed to the Holder at his or her registered address, (b)
otherwise as provided in Section 2.11 of the Original Indenture or (c) upon
application by a record Holder of at least $1,000,000 in aggregate principal
amount of Series C Bonds to the Trustee not later than 15 days prior to the
applicable Payment Date, by wire transfer to an account maintained by such
record Holder with a bank in The City of New York; provided that the final
installment of principal payable with respect to each Bond of the series created
hereby shall be payable as provided in Section 6.5 of the Original Indenture (in
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the case of any such Bond redeemed) or payable upon presentation and surrender
of each such Bond at the Place of Payment.
Section 2.3 SECTION Redemption.
(a) Optional Redemption. The Series C Bonds may be redeemed at the
option of the Funding Corporation and the Partnership in accordance with and
subject to Section 6.3 of the Original Indenture as follows:
(i) The Outstanding Series C Bonds may be redeemed prior to
maturity, as a whole or in part ratably, at any time, at a Redemption
Price equal to the outstanding principal amount of the Series C Bonds
being redeemed, plus accrued and unpaid interest thereon to but not
including the Redemption Date plus the Make-Whole Premium, upon notice
given by the Issuers to the Holders of the Series C Bonds not less than 30
nor more than 60 days prior to the date selected by the Issuer for such
redemption (the "Redemption Date").
(ii) All proceeds received by the Trustee from or on behalf of
the Partnership or the Funding Corporation identified as proceeds for an
optional redemption of the Series C Bonds under this Section 2.3(a) shall
be applied by the Trustee to the redemption of such Bonds on the
Redemption Date in respect thereof.
(b) Mandatory Redemption. Subject to the provisions of Section 6.3
of the Original Indenture, the Series C Bonds are subject to mandatory
redemption under the conditions and on the terms set forth in the Original
Indenture.
ARTICLE III.
MISCELLANEOUS
Section 3.1 SECTION Execution of Supplemental Indenture.
This Third Supplemental Indenture is executed and shall be construed
as an indenture supplemental to the Original Indenture and, as provided in the
Original Indenture, this Third Supplemental Indenture forms a part thereof.
Section 3.2 SECTION Concerning the Trustee.
The recitals contained herein and in the Bonds of the series created
hereby, except with respect to the Trustee's certificates of authentication,
shall be taken as the statements of the Funding Corporation and the Partnership,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Third
Supplemental Indenture or of the Bonds of the series created hereby.
Section 3.3 SECTION Counterparts.
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This Third Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 3.4 SECTION GOVERNING LAW.
THIS THIRD SUPPLEMENTAL INDENTURE AND EACH BOND OF THE SERIES
CREATED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this Third Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
LSP BATESVILLE FUNDING CORPORATION
By: ____________________________________
Name:
Title:
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: ____________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: ____________________________________
Name:
Title:
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