Exhibit 4.3
THIS SECURITY IS A RESTRICTED GLOBAL BOND WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE
FOR BONDS HELD BY A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY
BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS RESTRICTED GLOBAL BOND IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE PARTNERSHIP OR ITS AGENT FOR EXCHANGE OR PAYMENT,
AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN
WRITING BY DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE BEARER HEREOF, DTC, HAS AN
INTEREST HEREIN.
THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS BOND (OR ANY PREDECESSOR OF SUCH
BOND) EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT
INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
RESTRICTED GLOBAL BOND
TENASKA GEORGIA PARTNERS, L.P.
9.50% Senior Secured Bonds Due 2030
CUSIP Number: 00000XXX0
Bond Number: X-0
Xxxxxxxxx Xxxxxx: $200,000,000
Maturity Date: February 1, 2030
Issue Date: November 10, 1999
Interest Rate: 9.50%
Registered Holder: Cede & Co.
TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership (the
"Partnership", which term includes any successor or assign under the Indenture
referred to below), for value received hereby promises to pay to Cede & Co., or
its registered assigns, on each Scheduled Payment Date, the principal sum
corresponding to such Scheduled Payment Date set forth on the Schedule I of the
Indenture multiplied by a fraction the numerator of which is the Outstanding
amount of the Principal Amount set forth above and the denominator of which is
the Outstanding amount of all Bonds issued under the Indenture, or on such
earlier date as the entire principal hereof may become due in accordance with
the provisions hereof, and to pay interest in arrears on February 1 and August
1, commencing August 1, 2000, on said principal sum at the rate of 9.50% per
annum. Interest shall accrue from and including the most recent date to which
interest has been paid or duly provided for, from November 10, 1999 until
payment of said principal sum has been made or duly provided for. The interest
payable on any such Scheduled Payment Date will, subject to certain conditions
set forth herein, be paid to the person in whose name this Bond is registered at
the end of the fifteenth day next preceding each Scheduled Payment Date. Such
payments shall be made exclusively in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
The statements in the legend set forth above, if any, are an integral
part of the terms of this Bond and by acceptance hereof the holder of this Bond
agrees to be subject to and bound by the terms and provisions set forth in such
legend, if any.
REFERENCE IS MADE TO THE FURTHER PROVISIONS SET FORTH UNDER THE TERMS
AND CONDITIONS OF THE BONDS ENDORSED ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Bond
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated: November 10, 1999
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc., its
Managing General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
This is one of the Bonds described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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TERMS AND CONDITIONS OF BONDS
Principal Amount: $200,000,000
Interest Rate: 9.50%
Payment Dates: February 1 and August 1
(commencing August 1, 2000)
Minimum Denominations: US$100,000 and integral multiples of
$1,000 in excess thereof.
Other Terms:
1. General. This Bond is one of a duty authorized issue of debt Bonds
(the "Bonds") of Tenaska Georgia Partners, L.P. (the "Partnership") issued
pursuant to an Indenture (the "Indenture") dated as of November 1, 1999, between
the Partnership and The Chase Manhattan Bank, as Trustee. All capitalized terms
used but not otherwise defined herein shall have the meanings given to such
terms in the Indenture. The holders of the Bonds will be entitled to the
benefits of, be bound by, and be deemed to have notice of, all of the provisions
of the Indenture. A copy of the Indenture is on file and may be inspected at the
corporate trust office of the Trustee in The City of New York, at the offices of
the paying agents listed at the foot of this Bond and at the principal office of
the Partnership set forth in Section 18 (Indentures) hereto.
2. Payments and Paying Agencies. (a) All payments on this Bond shall be
made exclusively in immediately available funds and in such coin or currency of
the United States of America which, at the time of payment, is legal tender for
the payment of public and private debts.
(b) The Person in whose name any Bond is registered at the
close of business on any Regular Record Date with respect to any
Scheduled Payment Date shall be entitled to receive the principal,
premium (if any) and/or interest payable on such Scheduled Payment Date
notwithstanding the cancellation of such Bond upon any transfer or
exchange thereof, subsequent to such Regular Record Date and prior to
such Scheduled Payment Date; provided however, that if and to the
extent there is a default in the payment of the principal, premium (if
any) and/or interest due on such Scheduled Payment Date, such defaulted
principal, premium if any) and/or interest shall be paid to the Persons
in whose names Outstanding Bonds are registered at the close of
business on a subsequent date (each such date, a "Special Record
Date"), which shall not be less than five (5) days preceding the date
of payment of such defaulted principal, premium, if any) and/or
interest, established by a notice mailed by the Trustee to the
registered owners of the Bonds in accordance with Section 14.5(b)
(Notices) of the Indenture not less than fifteen (15) days prior to the
Special Record Date.
(c) If any date for the payment of principal of, premium (if
any) or interest on the Bonds is not a Business Day, such payment shall
be due on the first Business Day
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thereafter. Any payment made on such next succeeding business day shall
have the same force and effect as if made on the date on which such
payment is due, and no interest shall accrue for the period after such
date.
(d) Interest shall be calculated on the basis of a 360-day
year of twelve 30-day months.
3. Amendments and Supplements to Indenture. (a) Without Consent of
Holders. The Indenture may be amended or supplemented by the
Partnership and the Trustee at any time and from time to time, without
the consent of the Holders by a Supplemental Indenture authorized by a
resolution of the Executive Review Committee of the Partnership filed
with, and in form satisfactory to, the Trustee, solely for one or more
of the following purposes:
(i) to add additional covenants of the Partnership,
to surrender any right or power herein conferred upon the
Partnership or to confer upon the Holders any additional
rights, remedies, benefits, powers or authorities that may
lawfully be conferred;
(ii) to increase the assets securing the
Partnership's obligations under the Indenture;
(iii) to provide for the issuance of Additional Bonds
on the conditions set forth in Section 2.3 (Additional Bonds)
of the Indenture;
(iv) for any purpose not inconsistent with the terms
of the Indenture to cure any ambiguity or to correct or
supplement any provision contained herein or in any
Supplemental Indenture which may be defective or inconsistent
with any other provision contained herein or in any
Supplemental Indenture;
(v) in connection with, and to reflect, any
amendments to the provisions hereof required by the Rating
Agencies in circumstances where confirmation of the Ratings
are required under the Indenture in connection with the
issuance of Additional Bonds or the taking of other actions by
the Partnership; provided, however, that such amendments are
not, in the judgment of the Trustee, to the prejudice of the
Trustee or the Holders; or
(vi) to provide for the issuance of exchange Bonds as
contemplated by any agreement entered into in connection with
the issuance of Additional Bonds.
(b) With Consent of Holders. The Indenture may be amended or
supplemented by the Partnership and the Trustee at any time and from
time to time, with the consent of the Majority Holders, for the purpose
of adding any mutually agreeable provisions to or changing in any
manner or eliminating any of the provisions of, the Indenture, except
with respect to (a) the principal, premium (if any) or interest payable
upon any Bonds, (b) the dates on which interest on or principal of any
Bonds is paid, (c)
5
the dates of maturity of any Bonds, (d) Article 9 (Supplemental
Indentures) of the Indenture and (e) the grant of security interests
for the benefit of the Bonds. The matters of the Indenture described in
clauses (a) through (e) of the preceding sentence may be amended or
supplemented by the Partnership and the Trustee at any time and from
time to time only with the consent of the One Hundred Percent Holders.
Notice of any such amendment shall be given by the Partnership to any
Rating Agency then maintaining a Rating for the Bonds.
4. Replacement, Exchange and Transfer of Bonds. (a) If any Bond shall
become mutilated, the Partnership shall execute, and the Trustee shall
authenticate and deliver, a new Bond of like tenor, maturity and denomination in
exchange and substitution for the Bond so mutilated, but only upon surrender to
the Trustee of such mutilated Bond for cancellation, and the Partnership or the
Trustee may require reasonable indemnity therefor. If any Bond shall be reported
lost, stolen or destroyed evidence as to the ownership and the loss, theft or
destruction thereof shall be submitted to the Trustee. It such evidence shall be
satisfactory to both the Trustee and the Partnership and indemnity satisfactory
to both shall be given, the Partnership shall execute, and thereupon the Trustee
shall authenticate and deliver, a new Bond of like tenor, maturity and
denomination. The cost of providing any substitute Bond under the provisions of
Section 2.10 (Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
be borne by the Holder for whose benefit such substitute Bond is provided. If
any such mutilated, lost, stolen or destroyed Bond shall have matured or be
about to mature, the Partnership may, with the consent of the Trustee, pay to
the Holder thereof the principal amount of such Bond upon the maturity thereof
and compliance with the aforesaid conditions by such Holder, without the
issuance (of a substitute Bond therefor, and likewise pay to the Holder the
amount of the unpaid interest, if any, which would have been paid on a
substitute Bond had one been issued.
(b) Every substitute Bond issued pursuant to Section 2.10
(Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
constitute an additional contractual obligation of the Partnership,
whether or not the Bond alleged to have been mutilated, destroyed, lost
or stolen shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionally with any and all other Bonds duly issued hereunder.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by
Applicable Law, exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and
all other rights and remedies with respect thereto
5. Trustee. For a description of the duties and the immunities and
rights of the Trustee under the Indenture, reference is made to the Indenture,
and the obligations of the Trustee to the holder hereof are subject to such
immunities and rights.
6. Paying Agents; Transfer Agents; Registrars. The Partnership has
initially appointed the Trustee as paying agent, transfer agents and registrar.
The Partnership may, subject to the terms of the Indenture, at any time appoint
additional or other paying agents, transfer agents and registrars and terminate
the appointment thereof, provided, that while the Bonds are Outstanding the
Partnership will maintain offices or agencies for payment of principal
6
of and interest on this Bond as herein provided in the Borough of Manhattan, The
City of New York. Notice of any such termination or appointment and of any
change in the office through which any paying agent, transfer agent or registrar
will act will be promptly given in the manner described in Section 8 (Notices)
hereof.
7. Enforcement. (a) Subject to the provisions of Article 7 (Events of
Default; Remedies) of the Indenture, a Holder shall not have the right to
Institute any suit, action or proceeding at law or in equity or otherwise for
the appointment of a receiver or for the enforcement of any other remedy under
or upon this Indenture, unless:
(i) such Holder shall have previously given written
notice to the Trustee a continuing Event of Default;
(ii) Holders representing the percentage of aggregate
principal amount of Outstanding Bonds needed to initiate the
exercise of remedies shall have requested the Trustee in
writing to institute such suit, action or proceeding;
(iii) the Trustee shall have refused or neglected to
institute any such suit, action or proceeding for sixty (60)
days after receipt of such notice by the Trustee; and
(iv) no direction inconsistent with such written
request has been given to the Trustee during such sixty (60)
day period by the Majority Holders.
(b) It is understood and intended that one or more of the Holders shall
not have any right in any manner whatsoever hereunder or under the Bonds to (i)
surrender, impair, waive, affect, disturb or prejudice the Lien of the Indenture
on any property subject thereto or the rights of any other Holders, (ii) obtain
or seek to obtain priority or preference over any other Holders or (iii) enforce
any right under the Indenture, except in the manner provided herein or in the
Indenture and for the equal, ratable and common benefit of all or the Holders.
8. Notices. Notices shall be mailed to Holders at their registered
addresses. Notice sent by first class mail, postage prepaid, shall be deemed to
have been given on the date of such mailing. In addition, the Partnership will
cause all such other publications of such notices as may be required from time
to time by Applicable Law.
9. Redemption at the Option of the Partnership. The Bonds are, under
certain conditions, subject to redemption at the option of the Partnership as
set forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
10. Redemption at the Option of the Holders. The Bonds are, under
certain conditions, subject to redemption at the option of the Holders as set
forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
11. Mandatory Redemption. The Bonds are subject to mandatory redemption
under certain circumstances as set forth in Section 3.2 (Mandatory Redemption)
of the Indenture.
7
12. Authentication. This Bond shall not be valid for any purpose until
an Authorized Representative of the Trustee manually signs the certificate of
authentication hereon substantially in the form set forth in Exhibit A to the
Indenture.
13. Governing Law. This Bond is a contract made under the laws of the
State of New York of the United States and shall for all purposes be governed by
and construed in accordance with the laws of such State without regard to the
conflict of law rules thereof (other than Section 5-1401 of the New York General
Obligations Law).
14. Warranty by Issuer. Subject to Section 12 (Authentication) hereof,
the Partnership hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of this Bond, and to constitute the same a legal, valid
and binding obligation of the Partnership enforceable in accordance with its
terms, have been done and performed and have happened in due and strict
compliance with all Applicable Laws.
15. Trustee Dealings with the Partnership. Subject to certain
limitations imposed by the Trust Indenture Act, the Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Bonds and may otherwise deal with and collect obligations owed to it by the
Partnership or its Affiliates and may otherwise deal with the Partnership or its
Affiliates with the same rights it would have it if were not Trustee.
16. No Recourse Against Others. A director, officer, employee, partner,
affiliate, agent, servant or stockholder, as such, of the Partnership or the
Trustee shall not have any liability for any obligations of the Partnership
under the Bonds or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Bond, each Holder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Bonds.
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Partnership has
caused CUSIP numbers to be printed on the Bonds and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Bond holders. No
representation made as to the accuracy of such numbers either as printed on the
Bonds or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
18. Indentures. The Partnership will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Tenaska Georgia Partners, L.P., 0000 Xxxxx 000 Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx 00000, Attention: Managing General Partner.
19. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (Tenants in Common), TEN ENT (Tenants by
the Entireties), JT TEN (Joint Tenants with Rights of Survivorship and not as
Tenants in Common), CUST (Custodian), and U/G/M/A (Uniform Gift to Minors Act).
8
20. Descriptive Headings. The descriptive headings appearing in these
Terms and Conditions are for convenience of reference only and shall not alter,
limit or define the provisions thereof.
9
THIS SECURITY IS A RESTRICTED GLOBAL BOND WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE
FOR BONDS HELD BY A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY
BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS RESTRICTED GLOBAL BOND IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE PARTNERSHIP OR ITS AGENT FOR EXCHANGE OR PAYMENT,
AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN
WRITING BY DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE BEARER HEREOF, DTC, HAS AN
INTEREST HEREIN.
THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS BOND (OR ANY PREDECESSOR OF SUCH
BOND) EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT
INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
RESTRICTED GLOBAL BOND
TENASKA GEORGIA PARTNERS, L.P.
9.50% Senior Secured Bonds Due 2030
CUSIP Number: 00000XXX0
Bond Number: X-0
Xxxxxxxxx Xxxxxx: $75,000,000
Maturity Date: February 1, 2030
Issue Date: November 10, 1999
Interest Rate: 9.50%
Registered Holder: Cede & Co.
TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership (the
"Partnership", which term includes any successor or assign under the Indenture
referred to below), for value received hereby promises to pay to Cede & Co., or
its registered assigns, on each Scheduled Payment Date, the principal sum
corresponding to such Scheduled Payment Date set forth on the Schedule I of the
Indenture multiplied by a fraction the numerator of which is the Outstanding
amount of the Principal Amount set forth above and the denominator of which is
the Outstanding amount of all Bonds issued under the Indenture, or on such
earlier date as the entire principal hereof may become due in accordance with
the provisions hereof, and to pay interest in arrears on February 1 and August
1, commencing August 1, 2000, on said principal sum at the rate of 9.50% per
annum. Interest shall accrue from and including the most recent date to which
interest has been paid or duly provided for, from November 10, 1999 until
payment of said principal sum has been made or duly provided for. The interest
payable on any such Scheduled Payment Date will, subject to certain conditions
set forth herein, be paid to the person in whose name this Bond is registered at
the end of the fifteenth day next preceding each Scheduled Payment Date. Such
payments shall be made exclusively in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
The statements in the legend set forth above, if any, are an integral
part of the terms of this Bond and by acceptance hereof the holder of this Bond
agrees to be subject to and bound by the terms and provisions set forth in such
legend, if any.
REFERENCE IS MADE TO THE FURTHER PROVISIONS SET FORTH UNDER THE TERMS
AND CONDITIONS OF THE BONDS ENDORSED ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Bond
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated: November 10, 1999
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc., its
Managing General Partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
This is one of the Bonds described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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TERMS AND CONDITIONS OF BONDS
Principal Amount: $75,000,000
Interest Rate: 9.50%
Payment Dates: February 1 and August 1
(commencing August 1, 2000)
Minimum Denominations: US$100,000 and integral multiples of
$1,000 in excess thereof.
Other Terms:
1. General. This Bond is one of a duty authorized issue of debt Bonds
(the "Bonds") of Tenaska Georgia Partners, L.P. (the "Partnership") issued
pursuant to an Indenture (the "Indenture") dated as of November 1, 1999, between
the Partnership and The Chase Manhattan Bank, as Trustee. All capitalized terms
used but not otherwise defined herein shall have the meanings given to such
terms in the Indenture. The holders of the Bonds will be entitled to the
benefits of, be bound by, and be deemed to have notice of, all of the provisions
of the Indenture. A copy of the Indenture is on file and may be inspected at the
corporate trust office of the Trustee in The City of New York, at the offices of
the paying agents listed at the foot of this Bond and at the principal office of
the Partnership set forth in Section 18 (Indentures) hereto.
2. Payments and Paying Agencies. (a) All payments on this Bond shall be
made exclusively in immediately available funds and in such coin or currency of
the United States of America which, at the time of payment, is legal tender for
the payment of public and private debts.
(b) The Person in whose name any Bond is registered at the
close of business on any Regular Record Date with respect to any
Scheduled Payment Date shall be entitled to receive the principal,
premium (if any) and/or interest payable on such Scheduled Payment Date
notwithstanding the cancellation of such Bond upon any transfer or
exchange thereof, subsequent to such Regular Record Date and prior to
such Scheduled Payment Date; provided however, that if and to the
extent there is a default in the payment of the principal, premium (if
any) and/or interest due on such Scheduled Payment Date, such defaulted
principal, premium if any) and/or interest shall be paid to the Persons
in whose names Outstanding Bonds are registered at the close of
business on a subsequent date (each such date, a "Special Record
Date"), which shall not be less than five (5) days preceding the date
of payment of such defaulted principal, premium, if any) and/or
interest, established by a notice mailed by the Trustee to the
registered owners of the Bonds in accordance with Section 14.5(b)
(Notices) of the Indenture not less than fifteen (15) days prior to the
Special Record Date.
(c) If any date for the payment of principal of, premium (if
any) or interest on the Bonds is not a Business Day, such payment shall
be due on the first Business Day
4
thereafter. Any payment made on such next succeeding business day shall
have the same force and effect as if made on the date on which such
payment is due, and no interest shall accrue for the period after such
date.
(d) Interest shall be calculated on the basis of a 360-day
year of twelve 30-day months.
3. Amendments and Supplements to Indenture (a) Without Consent of
Holders. The Indenture may be amended or supplemented by the
Partnership and the Trustee at any time and from time to time, without
the consent of the Holders by a Supplemental Indenture authorized by a
resolution of the Executive Review Committee of the Partnership filed
with, and in form satisfactory to, the Trustee, solely for one or more
of the following purposes:
(i) to add additional covenants of the Partnership,
to surrender any right or power herein conferred upon the
Partnership or to confer upon the Holders any additional
rights, remedies, benefits, powers or authorities that may
lawfully be conferred;
(ii) to increase the assets securing the
Partnership's obligations under the Indenture;
(iii) to provide for the issuance of Additional Bonds
on the conditions set forth in Section 2.3 (Additional Bonds)
of the Indenture;
(iv) for any purpose not inconsistent with the terms
of the Indenture to cure any ambiguity or to correct or
supplement any provision contained herein or in any
Supplemental Indenture which may be defective or inconsistent
with any other provision contained herein or in any
Supplemental Indenture;
(v) in connection with, and to reflect, any
amendments to the provisions hereof required by the Rating
Agencies in circumstances where confirmation of the Ratings
are required under the Indenture in connection with the
issuance of Additional Bonds or the taking of other actions by
the Partnership; provided, however, that such amendments are
not, in the judgment of the Trustee, to the prejudice of the
Trustee or the Holders; or
(vi) to provide for the issuance of exchange Bonds as
contemplated by any agreement entered into in connection with
the issuance of Additional Bonds.
(b) With Consent of Holders. The Indenture may be amended or
supplemented by the Partnership and the Trustee at any time and from
time to time, with the consent of the Majority Holders, for the purpose
of adding any mutually agreeable provisions to or changing in any
manner or eliminating any of the provisions of, the Indenture, except
with respect to (a) the principal, premium (if any) or interest payable
upon any Bonds, (b) the dates on which interest on or principal of any
Bonds is paid, (c)
5
the dates of maturity of any Bonds, (d) Article 9 (Supplemental
Indentures) of the Indenture and (e) the grant of security interests
for the benefit of the Bonds. The matters of the Indenture described in
clauses (a) through (e) of the preceding sentence may be amended or
supplemented by the Partnership and the Trustee at any time and from
time to time only with the consent of the One Hundred Percent Holders.
Notice of any such amendment shall be given by the Partnership to any
Rating Agency then maintaining a Rating for the Bonds.
4. Replacement, Exchange and Transfer of Bonds. (a) If any Bond shall
become mutilated, the Partnership shall execute, and the Trustee shall
authenticate and deliver, a new Bond of like tenor, maturity and denomination in
exchange and substitution for the Bond so mutilated, but only upon surrender to
the Trustee of such mutilated Bond for cancellation, and the Partnership or the
Trustee may require reasonable indemnity therefor. If any Bond shall be reported
lost, stolen or destroyed evidence as to the ownership and the loss, theft or
destruction thereof shall be submitted to the Trustee. It such evidence shall be
satisfactory to both the Trustee and the Partnership and indemnity satisfactory
to both shall be given, the Partnership shall execute, and thereupon the Trustee
shall authenticate and deliver, a new Bond of like tenor, maturity and
denomination. The cost of providing any substitute Bond under the provisions of
Section 2.10 (Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
be borne by the Holder for whose benefit such substitute Bond is provided. If
any such mutilated, lost, stolen or destroyed Bond shall have matured or be
about to mature, the Partnership may, with the consent of the Trustee, pay to
the Holder thereof the principal amount of such Bond upon the maturity thereof
and compliance with the aforesaid conditions by such Holder, without the
issuance (of a substitute Bond therefor, and likewise pay to the Holder the
amount of the unpaid interest, if any, which would have been paid on a
substitute Bond had one been issued.
(b) Every substitute Bond issued pursuant to Section 2.10
(Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
constitute an additional contractual obligation of the Partnership,
whether or not the Bond alleged to have been mutilated, destroyed, lost
or stolen shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionally with any and all other Bonds duly issued hereunder.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by
Applicable Law, exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and
all other rights and remedies with respect thereto
5. Trustee. For a description of the duties and the immunities and
rights of the Trustee under the Indenture, reference is made to the Indenture,
and the obligations of the Trustee to the holder hereof are subject to such
immunities and rights.
6. Paying Agents; Transfer Agents; Registrars. The Partnership has
initially appointed the Trustee as paying agent, transfer agents and registrar.
The Partnership may, subject to the terms of the Indenture, at any time appoint
additional or other paying agents, transfer agents and registrars and terminate
the appointment thereof, provided, that while the Bonds are Outstanding the
Partnership will maintain offices or agencies for payment of principal
6
of and interest on this Bond as herein provided in the Borough of Manhattan, The
City of New York. Notice of any such termination or appointment and of any
change in the office through which any paying agent, transfer agent or registrar
will act will be promptly given in the manner described in Section 8 (Notices)
hereof.
7. Enforcement. (a) Subject to the provisions of Article 7 (Events of
Default; Remedies) of the Indenture, a Holder shall not have the right to
Institute any suit, action or proceeding at law or in equity or otherwise for
the appointment of a receiver or for the enforcement of any other remedy under
or upon this Indenture, unless:
(i) such Holder shall have previously given written
notice to the Trustee a continuing Event of Default;
(ii) Holders representing the percentage of aggregate
principal amount of Outstanding Bonds needed to initiate the
exercise of remedies shall have requested the Trustee in
writing to institute such suit, action or proceeding;
(iii) the Trustee shall have refused or neglected to
institute any such suit, action or proceeding for sixty (60)
days after receipt of such notice by the Trustee; and
(iv) no direction inconsistent with such written
request has been given to the Trustee during such sixty (60)
day period by the Majority Holders.
(b) It is understood and intended that one or more of the Holders shall
not have any right in any manner whatsoever hereunder or under the Bonds to (i)
surrender, impair, waive, affect, disturb or prejudice the Lien of the Indenture
on any property subject thereto or the rights of any other Holders, (ii) obtain
or seek to obtain priority or preference over any other Holders or (iii) enforce
any right under the Indenture, except in the manner provided herein or in the
Indenture and for the equal, ratable and common benefit of all or the Holders.
8. Notices. Notices shall be mailed to Holders at their registered
addresses. Notice sent by first class mail, postage prepaid, shall be deemed to
have been given on the date of such mailing. In addition, the Partnership will
cause all such other publications of such notices as may be required from time
to time by Applicable Law.
9. Redemption at the Option of the Partnership. The Bonds are, under
certain conditions, subject to redemption at the option of the Partnership as
set forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
10. Redemption at the Option of the Holders. The Bonds are, under
certain conditions, subject to redemption at the option of the Holders as set
forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
11. Mandatory Redemption. The Bonds are subject to mandatory redemption
under certain circumstances as set forth in Section 3.2 (Mandatory Redemption)
of the Indenture.
7
12. Authentication. This Bond shall not be valid for any purpose until
an Authorized Representative of the Trustee manually signs the certificate of
authentication hereon substantially in the form set forth in Exhibit A-1 to the
Indenture.
13. Governing Law. This Bond is a contract made under the laws of the
State of New York of the United States and shall for all purposes be governed by
and construed in accordance with the laws of such State without regard to the
conflict of law rules thereof (other than Section 5-1401 of the New York General
Obligations Law).
14. Warranty by Issuer. Subject to Section 12 (Authentication) hereof,
the Partnership hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of this Bond, and to constitute the same a legal, valid
and binding obligation of the Partnership enforceable in accordance with its
terms, have been done and performed and have happened in due and strict
compliance with all Applicable Laws.
15. Trustee Dealings with the Partnership. Subject to certain
limitations imposed by the Trust Indenture Act, the Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Bonds and may otherwise deal with and collect obligations owed to it by the
Partnership or its Affiliates and may otherwise deal with the Partnership or its
Affiliates with the same rights it would have it if were not Trustee.
16. No Recourse Against Others. A director, officer, employee, partner,
affiliate, agent, servant or stockholder, as such, of the Partnership or the
Trustee shall not have any liability for any obligations of the Partnership
under the Bonds or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Bond, each Holder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Bonds.
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Partnership has
caused CUSIP numbers to be printed on the Bonds and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Bond holders. No
representation made as to the accuracy of such numbers either as printed on the
Bonds or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
18. Indentures. The Partnership will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Tenaska Georgia Partners, L.P., 0000 Xxxxx 000 Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx 00000, Attention: Managing General Partner.
19. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (Tenants in Common), TEN ENT (Tenants by
the Entireties), JT TEN (Joint Tenants with Rights of Survivorship and not as
Tenants in Common), CUST (Custodian), and U/G/M/A (Uniform Gift to Minors Act).
8
20. Descriptive Headings. The descriptive headings appearing in these
Terms and Conditions are for convenience of reference only and shall not alter,
limit or define the provisions thereof.
9
THIS SECURITY IS A REGULATION S GLOBAL BOND WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE
FOR BONDS HELD BY A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY
BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS REGULATION S GLOBAL BOND IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE PARTNERSHIP OR ITS AGENT FOR EXCHANGE OR PAYMENT,
AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN
WRITING BY DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE BEARER HEREOF, DTC, HAS AN
INTEREST HEREIN.
THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS BOND (OR ANY PREDECESSOR OF SUCH
BOND) EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT
INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
REGULATION S GLOBAL BOND
TENASKA GEORGIA PARTNERS, L.P.
9.50% Senior Secured Bonds Due 2030
CUSIP Number: X00000XX0
ISIN Number: USU88020AA77
Bond Number: X-0
Xxxxxxxxx Xxxxxx: $0
Maturity Date: February 1, 2030
Issue Date: November 10, 1999
Interest Rate: 9.50%
Registered Holder: Cede & Co.
TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership (the
"Partnership", which term includes any successor or assign under the Indenture
referred to below), for value received hereby promises to pay to Cede & Co., or
its registered assigns, on each Scheduled Payment Date, the principal sum
corresponding to such Scheduled Payment Date set forth on the Schedule I of the
Indenture multiplied by a fraction the numerator of which is the Outstanding
amount of the Principal Amount set forth above and the denominator of which is
the Outstanding amount of all Bonds issued under the Indenture, or on such
earlier date as the entire principal hereof may become due in accordance with
the provisions hereof, and to pay interest in arrears on February 1 and August
1, commencing August 1, 2000, on said principal sum at the rate of 9.50% per
annum. Interest shall accrue from and including the most recent date to which
interest has been paid or duly provided for, from November 10, 1999 until
payment of said principal sum has been made or duly provided for. The interest
payable on any such Scheduled Payment Date will, subject to certain conditions
set forth herein, be paid to the person in whose name this Bond is registered at
the end of the fifteenth day next preceding each Scheduled Payment Date. Such
payments shall be made exclusively in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
The statements in the legend set forth above, if any, are an integral
part of the terms of this Bond and by acceptance hereof the holder of this Bond
agrees to be subject to and bound by the terms and provisions set forth in such
legend, if any.
REFERENCE IS MADE TO THE FURTHER PROVISIONS SET FORTH UNDER THE TERMS
AND CONDITIONS OF THE BONDS ENDORSED ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
2
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Bond
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated: November 10, 1999
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc., its
Managing General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
This is one of the Bonds described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
3
TERMS AND CONDITIONS OF BONDS
Principal Amount: $0
Interest Rate: 9.50%
Payment Dates: February 1 and August 1
(commencing August 1, 2000)
Minimum Denominations: US$100,000 and integral multiples of
$1,000 in excess thereof.
Other Terms:
1. General. This Bond is one of a duty authorized issue of debt Bonds
(the "Bonds") of Tenaska Georgia Partners, L.P. (the "Partnership") issued
pursuant to an Indenture (the "Indenture") dated as of November 1, 1999, between
the Partnership and The Chase Manhattan Bank, as Trustee. All capitalized terms
used but not otherwise defined herein shall have the meanings given to such
terms in the Indenture. The holders of the Bonds will be entitled to the
benefits of, be bound by, and be deemed to have notice of, all of the provisions
of the Indenture. A copy of the Indenture is on file and may be inspected at the
corporate trust office of the Trustee in The City of New York, at the offices of
the paying agents listed at the foot of this Bond and at the principal office of
the Partnership set forth in Section 18 (Indentures) hereto.
2. Payments and Paying Agencies. (a) All payments on this Bond shall be
made exclusively in immediately available funds and in such coin or currency of
the United States of America which, at the time of payment, is legal tender for
the payment of public and private debts.
(b) The Person in whose name any Bond is registered at the
close of business on any Regular Record Date with respect to any
Scheduled Payment Date shall be entitled to receive the principal,
premium (if any) and/or interest payable on such Scheduled Payment Date
notwithstanding the cancellation of such Bond upon any transfer or
exchange thereof, subsequent to such Regular Record Date and prior to
such Scheduled Payment Date; provided however, that if and to the
extent there is a default in the payment of the principal, premium (if
any) and/or interest due on such Scheduled Payment Date, such defaulted
principal, premium if any) and/or interest shall be paid to the Persons
in whose names Outstanding Bonds are registered at the close of
business on a subsequent date (each such date, a "Special Record
Date"), which shall not be less than five (5) days preceding the date
of payment of such defaulted principal, premium, if any) and/or
interest, established by a notice mailed by the Trustee to the
registered owners of the Bonds in accordance with Section 14.5(b)
(Notices) of the Indenture not less than fifteen (15) days prior to the
Special Record Date.
(c) If any date for the payment of principal of, premium (if
any) or interest on the Bonds is not a Business Day, such payment shall
be due on the first Business Day
4
thereafter. Any payment made on such next succeeding business day shall
have the same force and effect as if made on the date on which such
payment is due, and no interest shall accrue for the period after such
date.
(d) Interest shall be calculated on the basis of a 360-day
year of twelve 30-day months.
3. Amendments and Supplements to Indenture (a) Without Consent of
Holders. The Indenture may be amended or supplemented by the
Partnership and the Trustee at any time and from time to time, without
the consent of the Holders by a Supplemental Indenture authorized by a
resolution of the Executive Review Committee of the Partnership filed
with, and in form satisfactory to, the Trustee, solely for one or more
of the following purposes:
(i) to add additional covenants of the Partnership,
to surrender any right or power herein conferred upon the
Partnership or to confer upon the Holders any additional
rights, remedies, benefits, powers or authorities that may
lawfully be conferred;
(ii) to increase the assets securing the
Partnership's obligations under the Indenture;
(iii) to provide for the issuance of Additional Bonds
on the conditions set forth in Section 2.3 (Additional Bonds)
of the Indenture;
(iv) for any purpose not inconsistent with the terms
of the Indenture to cure any ambiguity or to correct or
supplement any provision contained herein or in any
Supplemental Indenture which may be defective or inconsistent
with any other provision contained herein or in any
Supplemental Indenture;
(v) in connection with, and to reflect, any
amendments to the provisions hereof required by the Rating
Agencies in circumstances where confirmation of the Ratings
are required under the Indenture in connection with the
issuance of Additional Bonds or the taking of other actions by
the Partnership; provided, however, that such amendments are
not, in the judgment of the Trustee, to the prejudice of the
Trustee or the Holders; or
(vi) to provide for the issuance of exchange Bonds as
contemplated by any agreement entered into in connection with
the issuance of Additional Bonds.
(b) With Consent of Holders. The Indenture may be amended or
supplemented by the Partnership and the Trustee at any time and from
time to time, with the consent of the Majority Holders, for the purpose
of adding any mutually agreeable provisions to or changing in any
manner or eliminating any of the provisions of, the Indenture, except
with respect to (a) the principal, premium (if any) or interest payable
upon any Bonds, (b) the dates on which interest on or principal of any
Bonds is paid, (c)
5
the dates of maturity of any Bonds, (d) Article 9 (Supplemental
Indentures) of the Indenture and (e) the grant of security interests
for the benefit of the Bonds. The matters of the Indenture described in
clauses (a) through (e) of the preceding sentence may be amended or
supplemented by the Partnership and the Trustee at any time and from
time to time only with the consent of the One Hundred Percent Holders.
Notice of any such amendment shall be given by the Partnership to any
Rating Agency then maintaining a Rating for the Bonds.
4. Replacement, Exchange and Transfer of Bonds. (a) If any Bond shall
become mutilated, the Partnership shall execute, and the Trustee shall
authenticate and deliver, a new Bond of like tenor, maturity and denomination in
exchange and substitution for the Bond so mutilated, but only upon surrender to
the Trustee of such mutilated Bond for cancellation, and the Partnership or the
Trustee may require reasonable indemnity therefor. If any Bond shall be reported
lost, stolen or destroyed evidence as to the ownership and the loss, theft or
destruction thereof shall be submitted to the Trustee. It such evidence shall be
satisfactory to both the Trustee and the Partnership and indemnity satisfactory
to both shall be given, the Partnership shall execute, and thereupon the Trustee
shall authenticate and deliver, a new Bond of like tenor, maturity and
denomination. The cost of providing any substitute Bond under the provisions of
Section 2.10 (Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
be borne by the Holder for whose benefit such substitute Bond is provided. If
any such mutilated, lost, stolen or destroyed Bond shall have matured or be
about to mature, the Partnership may, with the consent of the Trustee, pay to
the Holder thereof the principal amount of such Bond upon the maturity thereof
and compliance with the aforesaid conditions by such Holder, without the
issuance (of a substitute Bond therefor, and likewise pay to the Holder the
amount of the unpaid interest, if any, which would have been paid on a
substitute Bond had one been issued.
(b) Every substitute Bond issued pursuant to Section 2.10
(Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
constitute an additional contractual obligation of the Partnership,
whether or not the Bond alleged to have been mutilated, destroyed, lost
or stolen shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionally with any and all other Bonds duly issued hereunder.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by
Applicable Law, exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and
all other rights and remedies with respect thereto
5. Trustee. For a description of the duties and the immunities and
rights of the Trustee under the Indenture, reference is made to the Indenture,
and the obligations of the Trustee to the holder hereof are subject to such
immunities and rights.
6. Paying Agents; Transfer Agents; Registrars. The Partnership has
initially appointed the Trustee as paying agent, transfer agents and registrar.
The Partnership may, subject to the terms of the Indenture, at any time appoint
additional or other paying agents, transfer agents and registrars and terminate
the appointment thereof, provided, that while the Bonds are Outstanding the
Partnership will maintain offices or agencies for payment of principal
6
of and interest on this Bond as herein provided in the Borough of Manhattan, The
City of New York. Notice of any such termination or appointment and of any
change in the office through which any paying agent, transfer agent or registrar
will act will be promptly given in the manner described in Section 8 (Notices)
hereof.
7. Enforcement. (a) Subject to the provisions of Article 7 (Events of
Default; Remedies) of the Indenture, a Holder shall not have the right to
Institute any suit, action or proceeding at law or in equity or otherwise for
the appointment of a receiver or for the enforcement of any other remedy under
or upon this Indenture, unless:
(i) such Holder shall have previously given written
notice to the Trustee a continuing Event of Default;
(ii) Holders representing the percentage of aggregate
principal amount of Outstanding Bonds needed to initiate the
exercise of remedies shall have requested the Trustee in
writing to institute such suit, action or proceeding;
(iii) the Trustee shall have refused or neglected to
institute any such suit, action or proceeding for sixty (60)
days after receipt of such notice by the Trustee; and
(iv) no direction inconsistent with such written
request has been given to the Trustee during such sixty (60)
day period by the Majority Holders.
(b) It is understood and intended that one or more of the Holders shall
not have any right in any manner whatsoever hereunder or under the Bonds to (i)
surrender, impair, waive, affect, disturb or prejudice the Lien of the Indenture
on any property subject thereto or the rights of any other Holders, (ii) obtain
or seek to obtain priority or preference over any other Holders or (iii) enforce
any right under the Indenture, except in the manner provided herein or in the
Indenture and for the equal, ratable and common benefit of all or the Holders.
8. Notices. Notices shall be mailed to Holders at their registered
addresses. Notice sent by first class mail, postage prepaid, shall be deemed to
have been given on the date of such mailing. In addition, the Partnership will
cause all such other publications of such notices as may be required from time
to time by Applicable Law.
9. Redemption at the Option of the Partnership. The Bonds are, under
certain conditions, subject to redemption at the option of the Partnership as
set forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
10. Redemption at the Option of the Holders. The Bonds are, under
certain conditions, subject to redemption at the option of the Holders as set
forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
11. Mandatory Redemption. The Bonds are subject to mandatory redemption
under certain circumstances as set forth in Section 3.2 (Mandatory Redemption)
of the Indenture.
7
12. Authentication. This Bond shall not be valid for any purpose until
an Authorized Representative of the Trustee manually signs the certificate of
authentication hereon substantially in the form set forth in Exhibit A-2 to the
Indenture.
13. Governing Law. This Bond is a contract made under the laws of the
State of New York of the United States and shall for all purposes be governed by
and construed in accordance with the laws of such State without regard to the
conflict of law rules thereof (other than Section 5-1401 of the New York General
Obligations Law).
14. Warranty by Issuer. Subject to Section 12 (Authentication) hereof,
the Partnership hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of this Bond, and to constitute the same a legal, valid
and binding obligation of the Partnership enforceable in accordance with its
terms, have been done and performed and have happened in due and strict
compliance with all Applicable Laws.
15. Trustee Dealings with the Partnership. Subject to certain
limitations imposed by the Trust Indenture Act, the Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Bonds and may otherwise deal with and collect obligations owed to it by the
Partnership or its Affiliates and may otherwise deal with the Partnership or its
Affiliates with the same rights it would have it if were not Trustee.
16. No Recourse Against Others. A director, officer, employee, partner,
affiliate, agent, servant or stockholder, as such, of the Partnership or the
Trustee shall not have any liability for any obligations of the Partnership
under the Bonds or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Bond, each Holder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Bonds.
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Partnership has
caused CUSIP numbers to be printed on the Bonds and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Bond holders. No
representation made as to the accuracy of such numbers either as printed on the
Bonds or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
18. Indentures. The Partnership will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Tenaska Georgia Partners, L.P., 0000 Xxxxx 000 Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx 00000, Attention: Managing General Partner.
19. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (Tenants in Common), TEN ENT (Tenants by
the Entireties), JT TEN (Joint Tenants with Rights of Survivorship and not as
Tenants in Common), CUST (Custodian), and U/G/M/A (Uniform Gift to Minors Act).
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20. Descriptive Headings. The descriptive headings appearing in these
Terms and Conditions are for convenience of reference only and shall not alter,
limit or define the provisions thereof.
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