Exhibit 4.19
EXECUTION COPY
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INDENTURE OF TRUST
BETWEEN
DEVELOPMENT AUTHORITY OF HEARD COUNTY
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
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SECURING THE ISSUANCE OF NOT TO EXCEED $400,000,000 IN AGGREGATE
PRINCIPAL AMOUNT OF DEVELOPMENT AUTHORITY OF HEARD COUNTY TAXABLE
INDUSTRIAL DEVELOPMENT REVENUE BONDS (TENASKA GEORGIA PARTNERS, L.P.
PROJECT), SERIES 1999, AND ANY ADDITIONAL BONDS ISSUED HEREUNDER.
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DATED AS OF NOVEMBER 1, 1999
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THIS INSTRUMENT WAS PREPARED BY:
KING & SPALDING
000 XXXXXXXXX XXXXXX, XXXXX 0000
XXXXXXX, XXXXXXX 00000-0000
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions..................................................................5
SECTION 1.02. Use of Phrases...............................................................8
ARTICLE II
THE BONDS
SECTION 2.01. Issuance of Bonds in Series..................................................8
SECTION 2.02. Dates and Places of Payment of Bonds.........................................8
SECTION 2.03. Execution; Limited Obligation................................................9
SECTION 2.04. Authentication...............................................................9
SECTION 2.05. Form of Bonds...............................................................10
SECTION 2.06. Mutilated, Lost, Stolen or Destroyed Bonds..................................10
SECTION 2.07. Transfer of Bonds; Persons Treated as Owners................................10
SECTION 2.08. Home Office Payment Agreement...............................................11
SECTION 2.09. Redemption of Bonds.........................................................11
SECTION 2.10. Procedure for Redemption of Bonds...........................................12
SECTION 2.11. Selection of Bonds to be Redeemed; Partial Redemption of Bonds..............12
SECTION 2.12. Notice of Redemption........................................................12
SECTION 2.13. Additional Notice of Redemption.............................................13
SECTION 2.14. Payment of Redemption Price; Effect of Call for Redemption..................14
ARTICLE III
THE SERIES 0000 XXXXX
XXXXXXX 3.01. Issuance of Series 1999 Bonds...............................................14
SECTION 3.02. Form of Series 1999 Bonds...................................................15
SECTION 3.03. Authentication and Delivery of Series 1999 Bonds............................15
SECTION 3.04. Optional Redemption of Series 1999 Bonds....................................17
SECTION 3.05. Procedures for Redemption of Series 1999 Bonds..............................17
ARTICLE IV
ADDITIONAL BONDS
SECTION 4.01. Additional Bonds............................................................17
SECTION 4.02. Parity of Bonds.............................................................20
ARTICLE V
GENERAL COVENANTS
SECTION 5.01. Payment of Principal and Interest...........................................20
SECTION 5.02. Performance of Covenants; Issuer............................................20
SECTION 5.03. Ownership; Instruments of Further Assurance.................................21
SECTION 5.04. [Intentionally Omitted].....................................................21
SECTION 5.05. [Intentionally Omitted].....................................................21
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SECTION 5.06. Recordation of the Lease Agreement, Security Deed,
Financing Statements and Continuation Statements..........................21
SECTION 5.07. Inspection of Project Books.................................................21
SECTION 5.08. Priority of Pledgee.........................................................21
SECTION 5.09. Rights Under Lease Agreement................................................21
SECTION 5.10. Quitclaim Deed to be Held by Trustee........................................22
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.01. Source of Payment of Bonds..................................................22
SECTION 6.02. Creation of the Bond Fund...................................................22
SECTION 6.03. Payments into the Bond Fund.................................................22
SECTION 6.04. Use of Moneys in the Bond Fund..............................................23
SECTION 6.05. Custody of the Bond Fund....................................................24
SECTION 6.06. Non-presentment of Bonds at Maturity........................................24
SECTION 6.07. Trustee's Fees, Charges and Expenses........................................24
SECTION 6.08. Moneys to be Held in Trust..................................................24
SECTION 6.09. Repayment to the Lessee from the Bond Fund..................................24
ARTICLE VII
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 7.01. Construction Fund; Disbursements............................................25
SECTION 7.02. Completion of the Project...................................................25
SECTION 7.03. Appointment of Agent........................................................25
ARTICLE VIII
INVESTMENTS
SECTION 8.01. Bond Fund Investments.......................................................25
ARTICLE IX
POSSESSION, USE AND PARTIAL RELEASE OF PROJECT
SECTION 9.01. Subordination to Rights of the Lessee.......................................26
SECTION 9.02. Release of Certain Land.....................................................26
SECTION 9.03. Release of Leased Equipment.................................................26
SECTION 9.04. Granting or Release of Easements; Amendments or
Modifications to Easements................................................27
ARTICLE X
DISCHARGE OF LIEN
SECTION 10.01. Discharge of Lien...........................................................27
SECTION 10.02. Provision for Payment of Bonds..............................................27
SECTION 10.03. Discharge of the Indenture..................................................28
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ARTICLE XI
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
SECTION 11.01. Defaults; Events of Default.................................................28
SECTION 11.02. Acceleration................................................................28
SECTION 11.03. Surrender of Possession of Project; Rights and Duties
of Trustee in Possession..................................................28
SECTION 11.04. Other Remedies..............................................................29
SECTION 11.05. Rights of Bondholders.......................................................29
SECTION 11.06. Right of Owners of the Bonds to Direct Proceedings..........................30
SECTION 11.07. Appointment of Receivers....................................................30
SECTION 11.08. Waiver of Benefit of Laws...................................................30
SECTION 11.09. Application of Moneys.......................................................30
SECTION 11.10. Rights and Remedies Vested in Trustee.......................................31
SECTION 11.11. Rights and Remedies of Owners of the Bonds..................................31
SECTION 11.12. Termination of Proceedings..................................................31
SECTION 11.13. Waivers of Events of Default................................................32
ARTICLE XII
THE TRUSTEE
SECTION 12.01. Acceptance of the Trusts....................................................32
SECTION 12.02. Fees, Charges and Expenses of Trustee.......................................34
SECTION 12.03. [Intentionally omitted].....................................................35
SECTION 12.04. Intervention by Trustee.....................................................35
SECTION 12.05. Successor Trustee...........................................................35
SECTION 12.06. Resignation by the Trustee..................................................35
SECTION 12.07. Removal of the Trustee......................................................35
SECTION 12.08. Appointment of Successor Trustee by the Owners of the
Bonds; Temporary Trustee..................................................35
SECTION 12.09. Concerning Any Successor Trustee............................................36
SECTION 12.10. Right of Trustee to Pay Taxes and Other Charges.............................36
SECTION 12.11. Trustee Protected in Relying Upon Resolutions, etc..........................36
SECTION 12.12. Successor Trustee as Custodian of Funds, Paying Agent
and Bond Registrar........................................................36
SECTION 12.13. Trust Estate May Be Vested in Co-Trustee....................................37
SECTION 12.14. [Intentionally Omitted].....................................................37
SECTION 12.15. This Article Controls.......................................................37
SECTION 12.16. Consequential Damages.......................................................37
ARTICLE XIII
SUPPLEMENTAL INDENTURES
SECTION 13.01. Supplemental Indentures Not Requiring Consent of
Owners of the Bonds.......................................................38
SECTION 13.02. Supplemental Indentures Requiring Consent of Owners
of the Bonds..............................................................40
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SECTION 13.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel.......................................................39
ARTICLE XIV
AMENDMENT OF LEASE AGREEMENT AND SECURITY DEED
SECTION 14.01. Amendments, etc., to Lease Agreement and Security
Deed Not Requiring Consent of Owners of the Bonds.........................40
SECTION 14.02. Amendments, etc., to Lease Agreement and Security
Deed Requiring Consent of Owners of the Bonds.............................40
SECTION 14.03. Trustee Authorized to Join in Amendments; Reliance
on Counsel................................................................40
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Consents, etc. of Owners of the Bonds.......................................41
SECTION 15.02. Limitation of Rights........................................................41
SECTION 15.03. Issuer's Obligations Limited................................................42
SECTION 15.04. Immunity of Directors, Officers and Employees of Issuer.....................42
SECTION 15.05. Severability................................................................42
SECTION 15.06. Notices.....................................................................43
SECTION 15.07. Trustee as Paying Agent and Bond Registrar..................................44
SECTION 15.08. Payments Due on Saturdays, Sundays and Holidays.............................44
SECTION 15.09. Counterparts................................................................44
SECTION 15.10. Law Governing Indenture.....................................................44
EXHIBIT A Form of Bond
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST (the "Indenture"), dated as of November 1,
1999, made and entered into by and between the DEVELOPMENT AUTHORITY OF HEARD
COUNTY, a public corporation created and existing under the laws of the State of
Georgia (the "Issuer"), and THE CHASE MANHATTAN BANK, a state banking
corporation duly organized and existing under and by virtue of the laws of the
State of New York, having power and authority to accept and execute trusts, and
having its principal office in New York, New York, as Trustee (the "Trustee"),
RECITALS
WHEREAS, the Issuer has been created pursuant to the provisions of an
Act of the General Assembly of the State of Georgia (O.C.G.A. Section 36-62), as
amended and an activating resolution of the Board of Commissioners of Heard
County, Georgia duly adopted on January 3, 1972 (collectively, the "Act"), its
directors have been appointed as provided in the Act and are currently acting in
such capacity; and
WHEREAS, the Issuer has been created for the purpose of encouraging and
promoting the expansion and development of industrial and commercial facilities
in Heard County, Georgia; the Act empowers the Issuer to issue its revenue
obligations, in accordance with the applicable provisions of the Revenue Bond
Law of the State of Georgia (O.C.G.A. Sections 36-82-60 to 36-82-85), as
heretofore and hereafter amended, for the purpose of financing any undertaking
within the scope of its power, including, without limitation, the acquisition by
purchase or gift of any building or structure within the territorial limits of
Heard County suitable for and intended for use as a factory, mill, shop,
processing plant, assembly plant or fabricating plant, including all appurtenant
lands and appurtenances thereto and all necessary or useful furnishings,
machinery and equipment, and the lease or sale of such building or structure for
operation by one or more persons, firms or corporations, all in furtherance of
the public purpose for which it was created; and
WHEREAS, after careful study and investigation the Issuer, in
furtherance of the purpose for which it was created and pursuant to a resolution
duly adopted, has entered into a lease agreement (as the same may be amended
from time to time in accordance with its terms, the "Lease Agreement"), dated as
of even date herewith, with Tenaska Georgia Partners, L.P. (the "Lessee"), a
limited partnership organized and existing under the laws of the State of
Delaware, and duly qualified to do business in the State of Georgia, pursuant to
which the Issuer has agreed to acquire, construct and install the Project (as
defined in the Lease Agreement), including the real property owned by the Issuer
for the exclusive use and occupancy of the Lessee under the Lease Agreement and
the Lessee has agreed to pay the Issuer specified rental payments and other
payments; and
WHEREAS, after careful investigation, the Issuer has found and does
hereby declare that it is in the best interest of the citizens of Heard County
that the Project be acquired, constructed and installed and leased to the Lessee
for the purposes stated in the Lease Agreement, all in keeping with the public
purpose for which the Issuer was created, and that such acquisition,
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construction and installation of the Project and lease thereof to the Lessee are
specifically authorized under the Act; and
WHEREAS, a Project Summary (the "Project Summary") for the Project has
been prepared by the Lessee, and it is estimated that the amount necessary to
finance the cost of the Project, including expenses incidental thereto, will not
exceed $400,000,000 (said Project Summary, a copy of which is attached to the
Lease Agreement as Exhibit C and which may be amended from time to time by the
Lessee, has been approved by the Issuer and is on file with the Secretary of the
Issuer); and
WHEREAS, the most feasible method of financing the cost of the Project
is through the issuance hereunder of Development Authority of Heard County
Taxable Industrial Development Revenue Bonds (Tenaska Georgia Partners, L.P.
Project), Series 1999, in the aggregate principal amount of not to exceed
$400,000,000 (the "Series 1999 Bonds"); and
WHEREAS, the execution and delivery of this Indenture and the sale,
issuance and delivery of the Series 1999 Bonds have been in all respects duly
and validly authorized by resolution duly adopted by the Issuer; and
WHEREAS, it is anticipated that additional moneys may be necessary to
finance the cost of (a) completing the acquisition, construction and
installation of the Project, (b) providing for the enlargement, improvement,
expansion or replacement of the Project, (c) refunding all of the Bonds of any
one or more series then outstanding, or (d) any combination of the foregoing,
and provision should be made for the issuance from time to time of Additional
Bonds which shall be equally and ratably secured hereunder with the Series 1999
Bonds (the Series 1999 Bonds and such Additional Bonds being hereinafter
collectively referred to as the "Bonds"); and
WHEREAS, the Series 1999 Bonds will be delivered to and paid for by
Tenaska Georgia Partners, L.P., as purchaser (the "Purchaser") to finance the
acquisition, construction and installation of the Project, and the provisions of
this Indenture are to be liberally read and construed in a manner which
facilitates such approach to delivery and payment; and
WHEREAS, the Issuer will receive rental payments and other payments
from the Lessee, which revenues, together with all other rents, revenues and
receipts and other payments to be received pursuant to the Lease Agreement,
shall be pledged together with the Lease Agreement (except for the Unassigned
Rights) as security for the payment of the principal of and interest on the
Bonds; and
WHEREAS, as additional security for the payment of the Bonds, the
Issuer has conveyed title to that portion of the Project consisting of real
property and has assigned all leases in and to all rents and other payments
derived from the Project and has granted a security interest in that portion of
the Project consisting of personal property to the Trustee pursuant to the terms
of a Deed to Secure Debt, Security Agreement and Assignment of Rents and Leases
(the "Security Deed"), dated as of even date herewith; and
WHEREAS, the Lessee, the Senior Parties (hereafter referred to) and the
Collateral Agent (hereafter defined) have entered into an Agreement as to
Certain Undertakings, Common Representations, Warranties, Covenants and Other
Terms dated November 1, 1999 (as amended
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or modified in accordance with its terms, the "Common Agreement") which sets
forth certain representations, warranties and covenants of the Issuer and the
Lessee; and
WHEREAS, the Lessee, the Trustee, the Senior Parties, The Chase
Manhattan Bank, as collateral agent (the "Collateral Agent"), and The Chase
Manhattan Bank, as the depositary bank (the "Depositary Bank"), have entered
into a Collateral Agency and Intercreditor Agreement dated November 1, 1999 (as
amended or modified in accordance with its terms, the "Collateral Agency
Agreement"), which Collateral Agency Agreement, among other things, (a) sets
forth the mutual understandings of the parties thereto with respect to (i) the
exercise of certain rights, remedies and options by the respective parties
thereto, (ii) the priority of their respective Security Interests (as defined in
the Collateral Agency Agreement) created by the Security Documents (as defined
in the Common Agreement) and (iii) the appointment of the Collateral Agent, and
(b) provides for (i) the grant to the Collateral Agent, acting on behalf of the
Senior Parties and as agent for the Trustee, of a lien on and security interest
in, among other things, the funds established and created under the Collateral
Agency Agreement and (ii) the appointment by the Collateral Agent of the
Depositary Bank as depositary bank to hold and administer money deposited in the
various funds established and created under the Collateral Agency Agreement and
funded with, among other things, proceeds of certain insurance and revenues
generated and distributed to the Lessee;
WHEREAS, the Trustee recites that a condition of its acceptance of this
Indenture is the receipt of a duly authorized, executed and delivered Guaranty
Agreement, dated as of even date herewith, pursuant to which the Lessee, as
guarantor, absolutely and unconditionally guarantees to it the full and prompt
payment in accordance with the provisions on this Indenture of the principal of
and interest on the Series 1999 Bonds; and
WHEREAS, all things necessary to make the Series 1999 Bonds, when
authenticated by the Trustee and issued and delivered as in this Indenture
provided, the valid, binding and legal obligations of the Issuer, according to
the import thereof, and to create a valid assignment and pledge of the rental
payments and other payments derived from the Lease Agreement to the payment of
the principal of and interest on the Bonds and a valid assignment of all the
right, title and interest of the Issuer (except for the Unassigned Rights) in
the Lease Agreement, have been done and performed, and the execution and
delivery of this Indenture and the execution, issuance and delivery of the
Series 1999 Bonds, subject to the terms hereof, have in all respects been duly
authorized;
NOW, THEREFORE, KNOW ALL BY THESE PRESENTS, THIS INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises and of the acceptance
by the Trustee of the trusts hereby created, and of the purchase and acceptance
of the Series 1999 Bonds by the owners thereof, and of the sum of One Dollar
($1.00), lawful money of the United States of America, to it duly paid by the
Trustee, at or before the execution and delivery of these presents, and for
other good and valuable considerations the receipt of which is hereby
acknowledged, in order to secure the payment of the principal of and interest on
the Bonds according to their tenor and effect and to insure the performance and
observance by the Issuer of all the covenants expressed or implied herein and in
the Bonds, has given, granted, pledged, assigned, conveyed
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and transferred and does by these presents give, grant, pledge, assign, convey
and transfer to the Trustee (including to the Collateral Agent as agent for the
Trustee), and to its successors in the trusts hereby created, and to them and
their assigns forever, all of the Issuer's estate, right, title and interest in,
to and under any and all of the following described property, rights and
interest:
I.
A security interest in all right, title and interest of the Issuer in
the Lease Agreement and all amendments, modifications and renewals thereof
(except for the Unassigned Rights).
II.
A security interest in all rents, revenues or receipts and other
payments to be received pursuant to the Lease Agreement, together with all other
rents, revenues and receipts arising out of or in connection with the Issuer's
ownership of the Project (except for the Unassigned Rights), and all amendments,
modifications and renewals thereof.
III.
A security interest in all amounts on deposit from time to time in the
Construction Fund established under the Collateral Agency Agreement to the
extent such amounts represent proceeds of the Bonds, and a security interest in
all amounts on deposit from time to time in the Bond Fund established hereunder,
subject to the provisions of the Collateral Agency Agreement and this Indenture
permitting the application thereof for the purposes and on the terms and
conditions set forth therein and herein.
IV.
The Quitclaim Deed executed and owned by the Issuer, to be held in
trust in accordance with the terms hereof.
TO HAVE AND HOLD all the same with all privileges and appurtenances
hereby given, granted, pledged, assigned, conveyed, mortgaged and transferred,
or agreed or intended to be to the Trustee and its successors in said trusts and
to them and their assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, for
the equal and proportionate benefit, security and protection of all owners of
the Bonds issued or to be issued under and secured by this Indenture, without
preference, priority or distinction as to lien or otherwise of any of the Bonds
over any of the others except as herein expressly provided;
PROVIDED, HOWEVER, that upon Payment in Full of the Bonds in accordance
with the terms and provisions of this Indenture, this Indenture and the rights
hereby granted shall cease, determine and be void; otherwise, this Indenture
shall be of full force and effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly declared that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered
and all property hereby given, granted, pledged, assigned, conveyed or
transferred is to be dealt with and disposed of under, upon and subject to the
terms, conditions, stipulations, covenants, agreements,
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trusts, uses and purposes as hereinafter expressed, and the Issuer has agreed
and covenanted and does hereby agree and covenant with the Trustee and with the
respective owners, from time to time, of the Bonds or any part thereof, as
follows, that is to say:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following words and phrases and others evidently
intended as the equivalent thereof shall, in the absence of clear implication
herein otherwise, be given the following respective interpretations herein
(terms which are not defined in this Section shall have the meaning specified in
Article I of the Lease Agreement except as herein otherwise expressly provided
or unless the context requires otherwise):
"ACT" means an Act of the General Assembly of the State of Georgia
(O.C.G.A. Section 36-62-1 ET SEQ.), as amended, and an activating resolution of
the Board of Commissioners of Heard County, Georgia duly adopted on January 3,
1972.
"ADDITIONAL BONDS" means the bonds of any series, other than the Series
1999 Bonds, authorized under the Indenture and authenticated and delivered in
accordance with the provisions of Article IV of this Indenture.
"BOND FUND" means the Bond principal and interest payment fund created
by Section 6.02 hereof and within which there shall be established a General
Account and a Special Account. The Special Account may be established by the
Trustee for bookkeeping purposes only and moneys designated as being held in the
Special Account may be held in any segregated account designated by the Trustee
for such purpose. Any reference herein to the words "Bond Fund" without further
qualification shall constitute a reference to the General Account.
"BOND PURCHASE AGREEMENT" means the Bond Purchase Agreement, dated as
of November 1, 1999, between the Issuer and the Lessee, as lessee and as
purchaser of the Bonds, pursuant to which the Issuer has agreed to sell, and the
Lessee has agreed to purchase, the Series 1999 Bonds, in accordance with the
provisions thereof.
"BOND" or "BONDS" shall mean any or all of the not to exceed
$400,000,000 in aggregate principal amount of Development Authority of Heard
County Taxable Industrial Development Revenue Bonds (Tenaska Georgia Partners,
L.P. Project), Series 1999, to be issued by the Issuer hereunder, and from and
after the issuance of any Additional Bonds, unless the context clearly indicates
otherwise, such Additional Bonds.
"COLLATERAL AGENCY AGREEMENT" has the meaning set forth in the recitals
hereto.
"COLLATERAL AGENT" has the meaning set forth in the recitals hereto.
"COMMON AGREEMENT" has the meaning set forth in the recitals hereto.
"CONSTRUCTION FUND" means the fund so designated, established and
created under Section 2.2 of the Collateral Agency Agreement.
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The term "EVENT OF DEFAULT" means the events specified in Section 11.01
hereof, subject to the terms of Section 11.12 hereof.
"GOVERNMENT OBLIGATIONS" means (a) direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged, or (b) obligations issued by a person
controlled or supervised by and acting as an instrumentality of the United
States of America, the payment of the principal of and interest on which is
fully and unconditionally guaranteed as a full faith and credit obligation by
the United States of America (including any securities described in (a) or (b)
issued or held in book-entry form on the books of the Department of Treasury of
the United States of America), which obligations, in either case, are held in
the name of the Trustee and not subject to redemption prior to maturity by
anyone other than the holder thereof.
"GUARANTY AGREEMENT" means the Guaranty Agreement, of even date
herewith, from the Lessee, as guarantor, to the Trustee, pursuant to the terms
of which the Lessee has absolutely and unconditionally guaranteed the payment of
the principal of and interest on, the Bonds, and any amendments or supplements
thereto, including any amendments or any additional Guaranty Agreements executed
by the Lessee in connection with the issuance of any Additional Bonds.
"INDENTURE" means this Indenture of Trust and any amendments or
supplements hereto entered into by the Issuer and the Trustee pursuant to
Article XIII hereof.
"INDEPENDENT COUNSEL" means an attorney, or firm thereof, duly admitted
to practice law before the highest court of any state in the United States of
America or of the District of Columbia and not an employee of or regularly
retained by either the Issuer or the Lessee.
"INTEREST PAYMENT DATE" means, with respect to the Series 1999 Bonds,
each February 1 and August 1, commencing August 1, 2000, and each date on which
interest or principal is due and payable on all or part of the Series 1999 Bonds
by reason of acceleration or redemption.
"INTEREST PERIOD" means the period from and including any Interest
Payment Date to and including the calendar day immediately preceding the next
following Interest Payment Date.
"ISSUER" means the Development Authority of Heard County, a public
corporation created and existing under the laws of the State of Georgia
(including specifically the Act), and its lawful successors and assigns.
"LEASE AGREEMENT" or "LEASE" means the Lease Agreement, of even date
herewith, between the Issuer and the Lessee, and any amendments or supplements
thereto.
"LESSEE" means Tenaska Georgia Partners, L.P., a Delaware limited
partnership, and its successors and assigns, including any surviving, resulting
or transferee entity as provided in Section 8.3 of the Lease Agreement.
The term "OUTSTANDING", when used with reference to the Bonds at any
date as of which the amount of outstanding Bonds is to be determined, means all
Bonds which have been authenticated and delivered to the Trustee under this
Indenture, except:
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(a) Bonds cancelled at or prior to such date;
(b) Bonds for the payment or prepayment of which sufficient
moneys and/or Government Obligations meeting the terms and conditions
specified in Section 10.02 hereof shall have been theretofore
transferred or deposited into the Bond Fund (whether upon or prior to
the maturity or prepayment date of any such Bonds); provided that if
such Bonds are to be prepaid prior to the maturity thereof, notice of
such prepayment shall have been given or arrangements satisfactory to
the Trustee shall have been made therefor, or waiver of such notice
satisfactory in form to the Trustee shall have been filed with the
Trustee;
(c) Bonds in lieu of which others have been authenticated
under Section 2.06 hereof; and
(d) For purposes of any consent or other action to be taken by
the owners of a specified percentage of outstanding Bonds hereunder, or
unless the Lessee or an affiliate of the Lessee shall own at such time
100% of the outstanding Bonds (determined without reference to this
subparagraph (d)), Bonds held by the Lessee or an affiliate of the
Lessee.
The term "OWNERS OF THE BONDS" means the registered owners of the
Bonds, and, upon the occurrence of a "Trigger Event" under the Collateral Agency
Agreement, specifically means the Collateral Agent, as pledgee of the Bonds
pursuant to the Partnership Assignment and Security Agreement.
The term "PAYMENT IN FULL OF THE BONDS" specifically encompasses the
situations described in Sections 10.01 and 10.02 hereof.
"PERSON" means natural persons, firms, associations, corporations and
public bodies and other legal entities.
The term "PRINCIPAL OFFICE OF THE TRUSTEE" means the principal
corporate trust office of the Trustee in New York, New York, or the principal
corporate trust office of any successor trustee designated pursuant to the
provisions of a supplemental indenture.
"PROJECT" means the Building, the Leased Land and the Leased Equipment,
as each may at any time exist.
"PURCHASER" means Tenaska Georgia Partners, L.P., as initial purchaser
of the Series 1999 Bonds under the Bond Purchase Agreement, and its successors
and assigns.
"RECORD DATE" means the close of business on the 15th day (whether of
not a business day) of the month immediately preceding the applicable Interest
Payment Date.
"SECURITY DEED" means the Deed to Secure Debt, Security Agreement and
Assignment of Rents and Leases, of even date herewith, from the Issuer to the
Trustee, including any amendment thereto;
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"SECURITY INTEREST" shall refer to the security interests created
herein and in the Security Deed and shall have the meaning set forth in the
Uniform Commercial Code of Georgia, as now or hereafter amended.
"SENIOR PARTIES" shall have the meaning given in the Common Agreement.
"SERIES 1999 BOND" or "SERIES 1999 BONDS" shall mean any and all of the
$275,000,000 in aggregate principal amount of the Development Authority of Heard
County Taxable Industrial Development Revenue Bonds (Tenaska Georgia Partners,
L.P. Project), Series 1999, issued by the Issuer hereunder on the Closing Date.
"STATE" means the State of Georgia.
"TRUST ESTATE" means the property described in Sections I, II, III and
IV of the Granting Clauses of this Indenture.
"TRUSTEE" means the party so named and designated in the first
paragraph of this Indenture and any co-trustee or successor trustee hereunder
and any corporation resulting from or surviving any consolidation or merger to
which it or its successors may be a party.
"U.C.C." means the Uniform Commercial Code of the State, as now or
hereafter amended.
"UNASSIGNED RIGHTS" means the rights of the Issuer in and under the
Lease Agreement to be reimbursed for fees and expenses and the right of the
Issuer to be indemnified in accordance with the Lease Agreement.
SECTION 1.02. USE OF PHRASES. "HEREIN", "HEREBY", "HEREUNDER",
"HEREOF", "HEREINBEFORE", "HEREINAFTER" and other equivalent words refer to this
Indenture and not solely to the particular portion hereof in which any such word
is used. The definitions set forth in Section 1.01 hereof include both singular
and plural. Whenever used herein, any pronoun shall be deemed to include both
singular and plural and to cover all genders.
ARTICLE II
THE BONDS
SECTION 2.01. ISSUANCE OF BONDS IN SERIES. The Bonds may be issued in
different series and each Bond shall have an appropriate series designation. All
of the Bonds shall be equally and ratably secured by this Indenture by the
pledge herein made, it being expressly understood and agreed that no Bonds
issued hereunder shall be prior to any other Bonds thereafter issued hereunder,
but shall be on a parity therewith, with respect to the liens and security
interests created in favor of the Trustee under this Indenture.
SECTION 2.02. DATES AND PLACES OF PAYMENT OF BONDS. Each series of the
Bonds shall bear such date as shall be specified in this Indenture or in the
supplemental indenture providing for the issuance thereof and shall mature on
such dates in such years and in such amounts as shall be fixed therefor prior to
its issuance. Interest on the Bonds from their
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respective dates until their respective maturities shall be payable at such
rates as shall be fixed therefor prior to their issuance.
The Bonds shall be issued as fully registered Bonds as hereinafter
provided.
Each Bond shall be dated the date of its authentication and delivery by
the Trustee. The Bonds shall bear interest from the Interest Payment Date next
preceding the date of authentication of such Bond to which interest has been
paid or provided for, unless: (1) the date of authentication of such Bond is an
Interest Payment Date to which interest has been paid or provided for, then from
the date of authentication thereof, or (2) no interest has been paid on such
Bond, in which case from the dated date of such Bond or (3) such authentication
date shall be after any Record Date and before the next succeeding Interest
Payment Date in which case interest shall be paid from the next succeeding
Interest Payment Date.
The principal of and interest on each of the Bonds shall be payable in
lawful money of the United States of America by check payable to the owner
thereof delivered at the address of such owner as shown on the bond register
maintained by the Trustee as Bond Registrar (the "Bond Register"), unless there
shall be in effect a home office payment agreement satisfactory to the Trustee,
as provided in Section 2.08 hereof. Such payments shall be made to the person in
whose name a Bond shall be registered on the Bond Register, with respect to
payment of principal, on the date such principal is due, and, with respect to
the payment of interest, as of the applicable Record Date as shown on the Bond
Register. Payment of the final installment of principal of each Bond to the
owner thereof shall be made upon surrender of the Bond to the Trustee. The Bond
Registrar shall maintain a record of the amount and date of all payments or
prepayment of the principal of and interest on the Bonds.
SECTION 2.03. EXECUTION; LIMITED OBLIGATION. The Bonds shall be
executed on behalf of the Issuer by the official manual or facsimile signature
of its Chairman or Vice Chairman and the Issuer's corporate seal shall be
affixed thereto or printed thereon and attested by the official manual or
facsimile signature of its Secretary or Assistant Secretary. The obligation of
the Issuer to pay the Bonds and the interest thereon shall not be a general
obligation of the Issuer but shall be a limited obligation which shall be
payable from, and wholly secured by, a pledge of the Trust Estate. If any
officer of the Issuer who shall have signed or sealed any Bonds shall cease to
be such officer before such Bond so signed and/or sealed has been authenticated
and delivered by the Trustee, such Bond nevertheless may be authenticated and
delivered as though the person who signed and/or sealed such Bond had not ceased
to be such officer, and also any Bond may be signed and sealed on behalf of the
Issuer by such persons as at the actual time of execution of such Bond shall be
the proper officers of the Issuer, although at the date of such Bond such
persons may not have been officers of the Issuer.
SECTION 2.04. AUTHENTICATION. Only such Bonds as shall have endorsed
thereon a certificate of authentication substantially in the form hereinafter
set forth duly executed by the Trustee shall be entitled to any right or benefit
under this Indenture. No Bond shall be valid or obligatory for any purpose
unless and until such certificate of authentication shall have been duly
executed by the Trustee, and such executed certificate of the Trustee upon any
such Bond shall be conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. Said certificate of authentication on any Bond
shall be deemed to have been executed
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by the Trustee if signed by an authorized signatory of the Trustee, but it shall
not be necessary that the same signatory sign the certificate of authentication
on all of the Bonds issued hereunder.
SECTION 2.05. FORM OF BONDS. The fully registered Series 1999 Bonds and
the form for transfer and the validation certificate to be printed thereon, and
the Trustee's certificate to be endorsed on all Series 1999 Bonds shall be in
substantially the form hereinafter set forth in Exhibit "A" hereto with such
appropriate variations, omissions, substitutions and insertions as are permitted
or required by this Indenture and may have such letters, numbers or other marks
of identification and such legends and endorsements placed thereon, as may be
required to comply with any applicable laws or rules or regulations, or as may,
consistently herewith, be determined by the officers executing such Series 1999
Bonds, as evidenced by their execution of the Series 1999 Bonds. The Bonds of
each series of Additional Bonds, and the various certificates to be endorsed
thereon shall be in substantially the forms respectively provided therefor in
the supplemental indenture under which each series of Additional Bonds is
issued, which forms shall in general be similar to the form applicable to the
Series 1999 Bonds, with such insertions, omissions and other variations as may
be necessary to conform to the provisions hereof and of such supplemental
indenture.
SECTION 2.06. MUTILATED, LOST, STOLEN OR DESTROYED BONDS. If any Bond
is mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee
may authenticate and deliver a new Bond in the same principal amount in lieu of
and in substitution for the Bond mutilated, lost, stolen or destroyed; provided
that, in the case of any mutilated Bond, such mutilated Bond shall first be
surrendered to the Trustee, and in the case of any lost, stolen or destroyed
Bond, there shall be first furnished to the Issuer and the Trustee evidence
satisfactory to them and to the Lessee of the ownership of such Bond and of such
loss, theft or destruction, together with indemnity satisfactory to them. If any
such Bond shall have fully matured, instead of issuing a new Bond the Issuer may
pay the same. The Issuer and the Trustee may charge the owner of such Bond with
their reasonable fees and expenses in this connection.
SECTION 2.07. TRANSFER OF BONDS; PERSONS TREATED AS OWNERS. The Issuer
shall cause books for the transfer of the Bonds as provided in this Indenture to
be kept by the Trustee which is hereby constituted and appointed the Bond
Registrar of the Issuer. Upon surrender for transfer of any Bond at the
Principal Office of the Trustee, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
fully registered Bond or fully registered Bonds in the same aggregate principal
amount of any authorized denomination or denominations. Fully registered Bonds
may be exchanged at the Principal Office of the Trustee for an equal aggregate
principal amount of fully registered Bonds of any authorized denomination or
denominations.
Any Bond shall be fully transferable by the registered owner on the
Bond Register to be provided for that purpose, upon presentation of such Bond
for notation of transfer thereof at the Principal Office of the Trustee, as Bond
Registrar, accompanied by a written instrument of transfer in form satisfactory
to the Bond Registrar duly executed by the registered owner or its attorney duly
authorized in writing. No service charge shall be made for any such transfer,
but the Bond Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. The person in
whose name any Bond is registered from time to time shall be deemed and regarded
as the absolute owner thereof for all
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purposes and payment of or on account of the principal of and interest on such
Bond shall be made only to or upon the order of the registered owner thereof, or
its attorney duly authorized in writing, and neither the Issuer, the Trustee
(acting in its capacity as Bond Registrar or otherwise), nor any paying agent
acting for the Issuer shall be affected by any notice to the contrary. All such
payments shall be valid and effectual to satisfy and discharge the liability
upon the Bonds to the extent of the sum or sums so paid.
Anything in this Indenture to the contrary notwithstanding, there shall
not be effected, and the Trustee acting as Bond Registrar shall not permit the
effecting of, any transfer of any Bond pursuant to the provisions of this
Section, unless there is delivered to the Trustee (except for a transfer under
and pursuant to the Partnership Assignment and Security Agreement) an opinion of
Counsel satisfactory to the Trustee, the Issuer and the Lessee to the effect
that such transfer will not violate applicable securities laws.
All Bonds which have been surrendered to the Trustee pursuant to
Section 2.06 or 2.07 of this Indenture or for the purpose of payment upon
maturity or prepayment prior to maturity shall be cancelled and destroyed by the
Trustee and a certificate of destruction shall be delivered to the Issuer upon
the Issuer's request.
SECTION 2.08. HOME OFFICE PAYMENT AGREEMENT. Notwithstanding any
provision of this Indenture or of any Bond to the contrary, the Issuer and the
Trustee may enter into a home office payment agreement with the owner of any
Bond in an original principal amount of at least $100,000, providing for the
making to such owner of all payments of principal and interest on such Bond or
any part thereof (other than any payment of the entire unpaid principal amount
thereof) at a place and in a manner other than as provided in this Indenture and
in the Bonds without presentation or surrender of such Bond, upon such
conditions as shall be satisfactory to the Trustee (including the payment by the
Lessee of rental payments under the Lease directly to the owners of the Bonds in
satisfaction of the principal and interest on the Bonds). The Trustee agrees to
make or permit to be made payments of principal and interest on the Bonds in
accordance with the provisions of such home office payment agreement. The
Trustee shall not be liable to any such owner or to the Issuer for any act or
omission to act on the part of the Issuer, any such owner or any agent of the
Issuer, in connection with any such agreement, and the Trustee shall have no
obligation in connection with any payment of principal or interest made in
compliance with any such agreement and shall not be deemed to have notice of any
default in the making of any such payment. Upon the transfer of any registered
Bond being paid in accordance with the provisions of a home office payment
agreement permitted by this Section, the owner of such registered bond prior to
the delivery of such Bond to the transferee, shall make a notation on such Bond
of the date to which interest has been paid thereon and the amount of any
prepayments made on account of the principal thereof, and the Trustee shall not
be deemed to have notice of any such payment.
SECTION 2.09. REDEMPTION OF BONDS. The Series 1999 Bonds shall be
subject to redemption prior to maturity as set forth in Article III hereof, and
any series of Additional Bonds issued hereunder shall be subject to redemption
prior to maturity as provided in the supplemental indenture relating thereto.
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SECTION 2.10. PROCEDURE FOR REDEMPTION OF BONDS. The Issuer and the Trustee
shall take all action necessary to effect the redemption of Bonds as herein
provided upon the receipt by the Trustee, at least 10 days prior to the date
fixed for redemption, of a certificate of the Lessee specifying the proposed
redemption date, the principal amount of the Bonds to be called for redemption,
the applicable redemption price or prices and the provision or provisions of
this Indenture pursuant to which such Series 1999 Bonds are to be called for
redemption.
SECTION 2.11. SELECTION OF BONDS TO BE REDEEMED; PARTIAL REDEMPTION OF
BONDS.
(a) If less than all of the Bonds are to be redeemed, the
Bonds to be redeemed shall be selected by the Trustee by lot.
(b) In the case of any redemption of Bonds of denominations
greater than $100,000, if less than all of such Bonds then outstanding
are to be called for redemption, then for all purposes in connection
with such redemption, each $100,000 of face value shall be treated as
though it were a separate Bond of the denomination of $100,000. If it
is determined that one or more, but not all of the $100,000 units of
face value represented by any Bond are to be called for redemption,
then, upon notice of intention to redeem such $100,000 unit or units,
the owner of such Bond shall forthwith surrender such Bond to the
Trustee (1) for payment of the redemption price of the $100,000 unit or
units of face value called for redemption and (2) in exchange for a new
Bond or Bonds of the aggregate principal amount of the unredeemed
balance of the principal amount of such Bond. New Bonds representing
the unredeemed balance of the principal amount of such Bond shall be
issued to the registered owner thereof without charge therefor. If the
owner of any such Bond of a denomination greater than $100,000 shall
fail to present such Bond to the Trustee for payment and exchange as
aforesaid, such Bond shall, nevertheless, become due and payable on the
date fixed for redemption to the extent of the $100,000 unit or units
of face value called for redemption (and to that extent only); interest
shall cease to accrue on the portion of the principal amount of such
Bond represented by such $100,000 unit or units of face value on and
after the date fixed for the redemption; and, provided funds sufficient
for the payment of the redemption price have been deposited with the
Trustee and are available for the redemption of said $100,000 unit or
units on the date fixed for redemption, such Bond shall not be entitled
to the benefit or security of this Indenture to the extent of the
portion of its principal amount (and accrued interest thereon to the
date fixed for redemption) represented by such $100,000 unit or units
of face value, nor shall new Bonds be thereafter issued corresponding
to such $100,000 unit or units.
SECTION 2.12. NOTICE OF REDEMPTION. Notice of the call for redemption
identifying the Bonds to be redeemed shall be given by the Trustee by mailing a
copy of the redemption notice by first class mail, postage prepaid, not less
than 10 nor more than 60 days prior to the redemption date to the registered
owner of each Bond to be redeemed, in whole or in part, at the address shown on
the Bond Register. Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the owner receives
such notice.
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Each notice of redemption shall specify the date fixed for redemption,
the CUSIP number or numbers of the Bonds to be redeemed, the principal amount of
the Bonds or portions thereof to be redeemed, the redemption price or prices,
the place or places of payment, that redemption of the Bonds is contingent upon
the satisfaction of certain conditions or the occurrence of certain events (if
any) specified by the Lessee, that payment will be made upon presentation and
surrender of the Bonds to be redeemed (provided that the Bonds are not held in
book-entry only form), that interest accrued to the date fixed for redemption
will be paid as specified in said notice, and that on and after said date
interest thereon will cease to accrue. If less than all the outstanding Bonds
are to be redeemed, the notice of redemption shall specify the numbers of the
Bonds to be redeemed. In case any Bond is to be redeemed in part only, the
notice of redemption shall state that on and after the date fixed for
redemption, upon surrender of such Bond, a new Bond or Bonds in principal amount
equal to the unredeemed portion thereof will be issued without charge therefor.
Failure to give any such notice by mailing, or any defect therein,
shall not affect the validity of any proceedings for the redemption of any Bond
as to which notice was given as provided herein.
If the Lessee specifies any conditions to such redemption, unless all
conditions to redemption specified in the notice of redemption shall have been
satisfied or waived by the Lessee, such notice shall be of no force and effect,
the Issuer and the Trustee shall not redeem such Bonds and the bond registrar
shall promptly return the Bonds it has received to the registered owners thereof
as shown on the registration books. The Trustee may conclusively rely upon a
certificate of the Authorized Lessee Representative as to the satisfaction or
waiver of any conditions specified to any such redemption.
SECTION 2.13. ADDITIONAL NOTICE OF REDEMPTION. In the event any Bond to
be redeemed is registered in the name of any person other than the Purchaser,
further notice of redemption of such Bonds shall be given by the Trustee as set
out below, but no defect in said further notice nor any failure to give all or
any portion of such further notice shall in any manner defeat the effectiveness
of a call for redemption if notice thereof is given as prescribed in Section
2.14.
Each further notice of redemption given hereunder shall contain the
information required in Section 2.14 for an official notice of redemption, plus
(i) the CUSIP numbers of all Bonds being redeemed (if not included pursuant to
the notice required by Section 2.14); (ii) the date of issue of the Bonds as
originally issued; (iii) the rate of interest borne by each Bond being redeemed;
(iv) the maturity date of each Bond being redeemed; and (v) any other
descriptive information needed to identify accurately the Bonds being redeemed.
Each further notice of redemption shall be sent at least 30 days before
the redemption date by registered or certified mail or overnight delivery
service (at the expense of the addressee) to all of the following registered
securities depositories then in the business of holding substantial amounts of
bonds of the type comprising the Bonds (such depositories now being Depository
Trust Company of New York, New York; Midwest Securities Trust Company of
Chicago, Illinois; and Philadelphia Depository Trust Company of Philadelphia,
Pennsylvania) and to one or more national information services that disseminate
notices of redemption of bonds
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such as the Bonds (such as Financial Information Inc.'s Financial Daily Called
Bond Service; Interactive Data Corporation's Bond Service; Xxxxx Information
Service's Called Bond Service; Xxxxx'x Investors Services Municipal and
Government and Standard & Poor's Called Bond Record).
Upon the payment of the redemption price of Bonds being redeemed, each
check or other transfer of funds issued for such purpose shall bear the CUSIP
number identifying, by issue and maturity, the Bonds being redeemed with the
proceeds of such check or other transfer.
SECTION 2.14. PAYMENT OF REDEMPTION PRICE; EFFECT OF CALL FOR
REDEMPTION. On or before the redemption date specified in the notice of
redemption, an amount of money sufficient (together with any moneys available
therefor in the Bond Fund) to redeem all the Bonds or portions thereof called
for redemption at the appropriate redemption price, including accrued interest
to the date fixed for redemption, shall be deposited with the Trustee. On the
date designated for redemption, if all conditions specified in such notice have
been satisfied, notice having been given and moneys for payment of the
redemption price being on deposit with the Trustee or any paying agents, the
Bonds or portions thereof so called for redemption shall cease to bear interest;
shall cease to be entitled to any benefit or any security under this Indenture;
and the registered owners thereof shall have no rights in respect to such Bonds
or such portions thereof so called for redemption except to receive payment of
the redemption price therefor and accrued interest thereon to the redemption
date from the moneys on deposit with the Trustee or any paying agents pursuant
to the provisions of this Section.
ARTICLE III
THE SERIES 0000 XXXXX
XXXXXXX 3.01. ISSUANCE OF SERIES 1999 BONDS. The Series 1999 Bonds (i)
shall be designated "Development Authority of Heard County Taxable Industrial
Development Revenue Bonds (Tenaska Georgia Partners, L.P. Project), Series
1999," (ii) shall be issuable in an aggregate principal amount of not to exceed
$400,000,000 as one or more fully registered Bonds in denominations of $100,000
or any integral multiple thereof, except that one Bond may be issued in an
integral multiple of $5,000 in excess of $100,000 as necessary given the
aggregate principal amount of Series 1999 Bonds to be issued, (iii) shall be
dated in the manner set forth in Section 2.02 hereof, (iv) shall be numbered
from R-1 consecutively upwards in order of authentication according to the
records of the Trustee, (v) shall bear interest at a rate of 9.5% per annum
(computed on the basis of a 360-day year composed of twelve 30-day months),
payable on February 1 and August 1 of each year (each an "Interest Payment
Date") until paid, from the Interest Payment Date next preceding the date of
authentication of such Bond to which interest has been paid or provided for,
unless: (1) the date of authentication of such Bond is an Interest Payment Date
to which interest has been paid or provided for, then from such Interest Payment
Date, or (2) no interest has been paid on such Bond, in which case from the date
of authentication and delivery of such Bond or (3) such authentication date
shall be after any Record Date and before the next succeeding Interest Payment
Date in which case interest shall be paid from the next succeeding Interest
Payment Date, and (vi) shall mature on the dates set forth below.
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MATURITY DATE PRINCIPAL MATURITY DATE PRINCIPAL
February 1, 2006 344,000 February 1, 2018 5,844,000
August 1, 2006 344,000 August 1, 2018 5,844,000
February 1, 2007 344,000 February 1, 2019 6,532,000
August 1, 2007 344,000 August 1, 2019 6,532,000
February 1, 2008 688,000 February 1, 2020 6,875,000
August 1, 2008 688,000 August 1, 2020 6,875,000
February 1, 2009 1,032,000 February 1, 2021 7,219,000
August 1, 2009 1,032,000 August 1, 2021 7,219,000
February 1, 2010 1,375,000 February 1, 2022 7,563,000
August 1, 2010 1,375,000 August 1, 2022 7,563,000
February 1, 2011 1,719,000 February 1, 2023 8,250,000
August 1, 2011 1,719,000 August 1, 2023 8,250,000
February 1, 2012 2,407,000 February 1, 2024 8,594,000
August 1, 2012 2,407,000 August 1, 2024 8,594,000
February 1, 2013 3,094,000 February 1, 2025 8,938,000
August 1, 2013 3,094,000 August 1, 2025 8,938,000
February 1, 2014 3,438,000 February 1, 2026 9,282,000
August 1, 2014 3,438,000 August 1, 2026 9,282,000
February 1, 2015 4,125,000 February 1, 2027 9,969,000
August 1, 2015 4,125,000 August 1, 2027 9,969,000
February 1, 2016 4,469,000 February 1, 2028 11,688,000
August 1, 2016 4,469,000 August 1, 2028 11,688,000
February 1, 2017 5,157,000 February 1, 2029 12,375,000
August 1, 2017 5,157,000 August 1, 2029 12,375,000
February 1, 2030 12,358,000
===========
Total: 275,000,000
Interest due on any Series 1999 Bond or any Interest Payment Date shall
be paid to the owner of such Series 1999 Bond as shown on the registration books
kept by the Registrar on the Record Date.
SECTION 3.02. FORM OF SERIES 1999 BONDS. The fully registered Series
1999 Bonds shall be in substantially the form set forth, to the extent provided
in Section 2.05 hereof, in Exhibit "A" hereto.
SECTION 3.03. AUTHENTICATION AND DELIVERY OF SERIES 1999 BONDS.
Immediately following the execution and delivery of this Indenture, the Issuer
will deliver a Series 1999 Bond executed by the Issuer to the Trustee, together
with an order signed by the Chairman or Vice Chairman of the Issuer calling for
the authentication and delivery of said Series 1999 Bond, and the Trustee in
accordance with such order, shall authenticate and deliver said Series 1999 Bond
as in this Indenture provided and not otherwise.
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Prior to the authentication and delivery by the Trustee of the
aforesaid Series 1999 Bond which it will be initially ordered to authenticate
and deliver hereunder, there shall be filed with the Trustee:
1. A copy, duly certified by the Secretary of the Issuer, of
the resolution by the Issuer authorizing, among other things, the
issuance of the Series 1999 Bonds and the execution, delivery and
performance of this Indenture, the Lease Agreement, the Security Deed
and the Bond Purchase Agreement.
2. An original executed counterpart of this Indenture, the
Lease Agreement, the Security Deed, the Guaranty Agreement and the Bond
Purchase Agreement.
3. Copies of Financing Statements filed to perfect the
security interests created herein.
4. A title insurance policy satisfactory to the Purchaser
stating that the Issuer holds good and marketable fee simple title to
the Leased Land, free from encumbrances except Permitted Liens.
5. The written opinion of Counsel for the Issuer relating to
the power and authority of the Issuer to execute and deliver and to
perform its obligations under the various documents to which it is a
party and to issue the Bonds for the purposes stated therein, and the
due authorization, execution and delivery of such documents and the
Bonds, and covering such matters with respect to the liens and security
interests created under the Indenture and the Security Deed, and such
other matters, as may be reasonably requested by the parties to the
transaction.
6. A written request, order and authorization to the Trustee
on behalf of the Issuer and signed by its Chairman or Vice Chairman to
authenticate and deliver the Series 1999 Bonds in full form to or upon
the order of the Purchaser upon payment to the Trustee, but for the
account of the Issuer, of the sum specified in such request order and
authentication (which sum shall consist of the purchase price of the
Series 1999 Bonds set forth in the Bond Purchase Agreement) plus
accrued interest on the Series 1999 Bonds from the dated date thereof
to the date of delivery thereof. The proceeds from the sale of the
Series 1999 Bonds any such Bond shall be deposited in the Construction
Fund as hereinafter provided in Article VII.
7. An opinion of a firm of nationally recognized bond
attorneys satisfactory to the Trustee to the effect that (i) the
issuance of the Series 1999 Bonds has been duly authorized and the
terms thereof comply with the requirements of this Indenture and the
Constitution and laws of the State of Georgia; (ii) all conditions
precedent provided for in this Indenture relating to the authentication
and delivery of the Series 1999 Bonds have been satisfied; (iii) upon
the issuance of the Series 1999 Bonds, they shall be valid and binding
obligations of the Issuer entitled to the benefits of and secured by
this Indenture; and (iv) such other matters as may be reasonably
required by the Issuer and the Trustee; and
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SECTION 3.04. OPTIONAL REDEMPTION OF SERIES 1999 BONDS. The Series 1999
Bonds are subject to redemption prior to maturity at any time in whole or in
part at a redemption price equal to the principal amount to be redeemed plus
accrued interest thereon to the date of redemption, at the option of the Lessee,
such option to be exercised by written notice delivered to the Issuer and the
Trustee at least 10 days prior to the date of redemption.
SECTION 3.05. PROCEDURES FOR REDEMPTION OF SERIES 1999 BONDS. The
procedures for redemption of Series 1999 Bonds pursuant to Section 3.04 hereof,
including notices of redemption, selection of Series 1999 Bonds for partial
redemption and certain other provisions relating thereto, shall be as set forth
in Article II of this Indenture.
ARTICLE IV
ADDITIONAL BONDS
SECTION 4.01. ADDITIONAL BONDS. By an indenture or indentures
supplemental hereto and in accordance with the provisions of this Indenture, the
Issuer may from time to time provide for the issuance hereunder of Additional
Bonds for the purpose of financing the cost of (i) completing the acquisition,
construction and installation of the Project, (ii) providing for the
enlargement, improvement, expansion or replacement of the Project, (iii)
refunding all of the Bonds of any one or more series then outstanding; or (iv)
any combination of the foregoing.
Such Additional Bonds shall be in fully registered form and have such
identifying designation, shall be dated such date, shall mature at such time or
times, shall bear interest at such rate or rates, shall be subject to prepayment
prior to maturity at such times and prices and shall contain such other
provisions not inconsistent with this Indenture as the resolution of the Issuer
and the supplemental indenture providing for the issuance thereof shall fix and
determine.
(a) ADDITIONAL BONDS FOR COMPLETION, EXPANSION, ETC. The
Issuer may execute and deliver to the Trustee and the Trustee shall
authenticate and deliver Additional Bonds for the purposes specified in
(i) or (ii) above upon receipt by the Trustee of the following:
(1) A written statement of the Lessee executed on
behalf of the Lessee by any officer, chairman of the board,
president or vice president of the general partner of the
Lessee (i) approving the terms, conditions, manner of
issuance, purchase price, delivery and contemplated
disposition of the proceeds of the sale of such Additional
Bonds, and (ii) certifying that no Event of Default has
occurred and is continuing under the Lease Agreement or, to
the best of his knowledge, this Indenture and that all
conditions precedent to the incurrence of such indebtedness
set forth in the Common Agreement have been satisfied or
waived;
(2) A copy, duly certified by the Secretary of the
Issuer, of the resolution adopted and approved by the Issuer
authorizing the issuance of such Additional Bonds and the
execution and delivery of the supplemental indenture
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providing for the terms and conditions under which such
Additional Bonds shall be issued, together with an executed
counterpart of such supplemental indenture;
(3) An executed counterpart of an amendment of the
Lease Agreement expressly providing for an adjustment in the
rentals of the Lessee to provide payments sufficient to pay
the principal of and interest on such Additional Bonds and
further expressly providing that, for all purposes of this
Indenture and the Lease Agreement, the Project shall include
the facilities being financed by the Additional Bonds (except
in the case of Refunding Bonds hereinafter referred to), and
providing for the use of the proceeds of the sale of such
Additional Bonds;
(4) An original executed counterpart of a guaranty
agreement substantially identical to the Guaranty Agreement in
all material respects and satisfactory to the Trustee and its
Counsel as to form and content, signed by the Lessee, as
guarantor, and accepted by the Trustee unconditionally
guaranteeing the principal of and interest on such Additional
Bonds.
(5) Copies of Financing Statements filed to protect
the security interests created in the supplemental indenture
with respect to the Additional Bonds;
(6) The written opinion of Counsel to the Issuer or
other Counsel satisfactory to the Trustee expressing the
opinion (a) that this Indenture, as supplemented, creates a
valid first lien on and pledge of the revenues thereby
conveyed and pledged, and all filings and/or recordings of any
document required in order to perfect and preserve such first
lien and pledge have been duly accomplished, and (b) that the
amendment to the Lease Agreement has been properly recorded in
the proper place or places where such recordation is required
for the giving of notice thereof, such recordation is complete
and no other filing, recording, publishing or rerecording is
required.
(7) An opinion of a firm of nationally recognized
bond attorneys satisfactory to the Trustee to the effect that
(i) the issuance of such Additional Bonds has been duly
authorized and the terms thereof comply with the requirements
of this Indenture and the Constitution and laws of the State
of Georgia; (ii) all conditions precedent provided for in this
Indenture relating to the authentication and delivery of such
Additional Bonds have been satisfied; (iii) upon the issuance
of such Additional Bonds, they shall be valid and binding
obligations of the Issuer entitled to the benefits of and
secured by this Indenture; and (iv) such other matters as may
be reasonably required by the Issuer and the Trustee; and
(8) A written request, order and authorization to the
Trustee on behalf of the Issuer and signed by the Chairman or
Vice Chairman and Secretary of the Issuer to authenticate and
deliver such Additional Bonds to the purchaser or purchasers
therein identified upon payment to the Trustee, but for the
account of
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the Issuer, of the sum specified in such request and
authorization plus accrued interest on such Additional Bonds
to the date of delivery thereof.
The proceeds of such Additional Bonds shall be deposited with the
Trustee and held and disbursed by the Trustee as provided in the supplemental
indenture providing for the issuance of such Additional Bonds.
(b) ADDITIONAL BONDS FOR REFUNDING. The Issuer may execute and
deliver to the Trustee and the Trustee shall authenticate and deliver
Additional Bonds for the purpose specified in (iii) above upon receipt
by the Trustee of the following:
(1) The items specified in subsections (1) through
(7) of Section 4.01(a) hereof;
(2) A copy, duly certified by the Secretary of the
Issuer, of the resolution adopted and approved by the Issuer
describing the Bonds to be refunded, and authorizing all
necessary action in connection with the refunding thereof
pursuant to the provisions of this Indenture;
(3) In the event that any of the Bonds being refunded
are to be prepaid on any date prior to their maturity,
irrevocable instructions to prepay such Bonds on such date and
evidence satisfactory to the Trustee that notice of prepayment
of the Bonds to be prepaid has been published or given as
provided in the Indenture, or irrevocable power authorizing
the Trustee to give such notice;
(4) Irrevocably in trust for the purpose of paying or
prepaying the Bonds to be refunded, either moneys or
Government Obligations or a combination thereof in an amount
which, together with the interest thereon, is sufficient to
discharge the lien of this Indenture with respect to the Bonds
to be refunded;
(5) Moneys equal to the sum of (i) the amount
estimated by the Trustee as necessary for the payment of
expenses incurred or to be incurred by it or by or on behalf
of the Issuer in connection with the payment or prepayment of
the Bonds to be refunded and the issuance of such Additional
Bonds plus (ii) the accrued interest, if any, on the
Additional Bonds to the date of delivery thereof; and
(6) A written request, order and authorization to the
Trustee on behalf of the Issuer and signed by the Chairman or
Vice Chairman and Secretary of the Issuer to authenticate and
deliver such Additional Bonds to the purchaser or purchasers
therein identified upon payment or delivery to the Trustee for
the account of the Issuer of the moneys or Government
Obligations or combination thereof required by subsection (5)
next above, as the consideration for the sale of such
Additional Bonds.
The amounts estimated by the Issuer and the Trustee for payment of
their respective expenses incurred or to be incurred in connection with the
payment or prepayment of the Bonds to be refunded and the issuance of such
Additional Bonds shall be set aside by the Trustee from
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the proceeds of such Additional Bonds and applied by the Trustee in payment of
such expenses. Any amount of the moneys set aside for the payment of such
expenses remaining after all such expenses have been paid or provided for shall
be transferred by the Trustee to the Bond Fund. The balance of the proceeds of
the sale of such Additional Bonds remaining after the deposit of the amount set
aside for the payment of the expenses incurred or to be incurred in connection
with the payment or prepayment of the Bonds to be refunded and the issuance of
such Additional Bonds shall be held by the Trustee in trust for the sole and
exclusive purpose of paying the principal of and interest on, the Bonds to be
refunded.
SECTION 4.02. PARITY OF BONDS. Each of such Additional Bonds of
whatever series shall rank equally and on a parity with the Series 1999 Bonds
and shall be equally and ratably secured hereunder and under the Security Deed
with the Series 1999 Bonds and all other series of Additional Bonds, if any,
without preference, priority or distinction of any of the aforesaid Bonds, or
any coupons appertaining thereto, over any other thereof. The Issuer shall not
incur any indebtedness or issue any bonds or other obligations of any kind
(other than the Series 1999 Bonds and any Additional Bonds) secured by a pledge
of the rental payments received under the Lease Agreement.
ARTICLE V
GENERAL COVENANTS
SECTION 5.01. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants
that it will promptly pay the principal of and interest on the Bonds at the
place, on the dates and in the manner provided herein and in the Bonds according
to the true intent and meaning hereof and thereof. The principal and interest
are payable solely from (i) the Trust Estate (except for the Unassigned Rights),
and (ii) payments made under the Guaranty Agreement, which payments, rents,
revenues and receipts are hereby specifically pledged to the payment of the
principal of and interest on the Bonds in the manner and to the extent herein
specified. The Bonds and the interest thereon shall not be deemed to constitute
a debt or a general obligation of the State of Georgia or Heard County, and the
Bonds do not directly, indirectly or contingently obligate said State or County
to levy or to pledge any form of taxation whatsoever for the payment of the
principal of or interest on the Bonds. The principal of and interest on the
Bonds are payable solely from the Bond Fund and specifically from the Special
Account established therein pursuant to Section 6.02 hereof.
SECTION 5.02. PERFORMANCE OF COVENANTS; ISSUER. The Issuer covenants
that it will faithfully perform at all times any and all covenants, agreements,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond, and in all proceedings of the Issuer pertaining thereto. The
Issuer covenants that it is duly authorized under the laws of the State of
Georgia to issue the Bonds and to execute, deliver and perform the Indenture and
to pledge the Trust Estate (except for the Unassigned Rights) in the manner and
to the extent herein set forth; that all action on its part for the issuance of
the Bonds and the execution, delivery and performance of this Indenture has been
duly and effectively taken, and that the Bonds are and will be valid and
enforceable limited obligations of the Issuer according to the import thereof.
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SECTION 5.03. OWNERSHIP; INSTRUMENTS OF FURTHER ASSURANCE. The Issuer
covenants that it lawfully owns and is lawfully possessed of the Leased Land
(subject, however, to Permitted Liens) and that it has good and marketable fee
simple title therein and thereto and that it holds and owns the Building and the
Leased Equipment and that it will defend its title in and to the Leased Land and
every part thereof to the Trustee, and its respective successors and assigns,
for the benefit of the owners of the Bonds against the claims and demands of all
persons whomsoever. The foregoing covenants are subject to the limitations
described in Section 3.4 of the Lease Agreement. The Issuer covenants that it
will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such further
acts, instruments and transfers as the Trustee may reasonably require for the
better giving, granting, pledging, assigning, conveying, transferring, assuring
and confirming unto the Trustee all and singular the rents, revenues and
receipts pledged hereby to the payment of the principal of and interest on the
Bonds. The Issuer covenants that, except for the Quitclaim Deed, and except as
herein and in the Lease Agreement and Security Deed provided, it will not sell,
convey, encumber or otherwise dispose of any part of the Project.
SECTION 5.04. [INTENTIONALLY OMITTED].
SECTION 5.05. [INTENTIONALLY OMITTED].
SECTION 5.06. RECORDATION OF THE LEASE AGREEMENT, SECURITY DEED, FINANCING
STATEMENTS AND CONTINUATION STATEMENTS. The Issuer covenants that it will cause
the Lease Agreement, the Security Deed and all Financing Statements and all
supplements thereto and hereto to be recorded and filed in such manner and in
such places as may be required by law in order to fully protect and preserve the
interest of the owners of the Bonds in the rights, privileges and options of the
Trustee hereunder and the Lessee has covenanted in Section 8.8 of the Lease
Agreement to cause continuation statements with respect to said Financing
Statements to be kept recorded and filed in such manner and in such places as
may be required by law in order to fully protect and preserve the interest of
the owners of the Bonds as aforesaid.
SECTION 5.07. INSPECTION OF PROJECT BOOKS. The Issuer covenants that all
books and documents in its possession relating to the rents, revenues and
receipts derived from the Project shall at all times during normal business
hours be open to inspection by such accountants or other agents as the Trustee
may, from time to time, designate. The Lessee shall be given at least 48 hours
prior written notice of any such inspection and the opportunity to have a
representative present during such inspection.
SECTION 5.08. PRIORITY OF PLEDGEE. The pledge hereby made of the Trust
Estate (except for the Unassigned Rights) constitutes a first and prior pledge
thereof and shall not be impaired directly or indirectly by the Issuer or the
Trustee and the payments, rents, revenues and receipts from the Project and the
Issuer's interest in the Lease Agreement shall not otherwise be pledged and no
persons shall have any rights with respect thereto except as provided herein and
in the Lease Agreement and Security Deed.
SECTION 5.09. RIGHTS UNDER LEASE AGREEMENT. Reference is hereby made to
the Lease Agreement for a detailed statement of the obligations of the Lessee
thereunder, and the Issuer agrees that the Trustee in its own name or in the
name of the Issuer may enforce all rights
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of the Issuer (except for the Unassigned Rights) and all obligations of the
Lessee under and pursuant to the Lease Agreement for and on behalf of the owners
of the Bonds, whether or not the Issuer is in default hereunder.
SECTION 5.10. QUITCLAIM DEED TO BE HELD BY TRUSTEE. The Trustee agrees
that it will hold or cause to be held the Quitclaim Deed in escrow hereunder
as a part of the Trust Estate, and will deliver or cause to be delivered the
Quitclaim Deed to the Lessee at the written direction of the Lessee after
Payment in Full of the Bonds.
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.01. SOURCE OF PAYMENT OF BONDS. The obligation of the Issuer
to pay the principal of and interest on the Bonds is not a general obligation
of the Issuer but is a limited obligation payable solely from the rental
payments and other payments received from the Lessee under the Lease
Agreement together with all other rents, revenues and receipts (except for
certain indemnification rights provided therein) arising out of or in
connection with the Issuer's ownership of the Project and as authorized and
provided herein.
The Project has been leased under the Lease Agreement and the rental
payments provided for in Section 5.3 of the Lease Agreement are to be remitted
directly to the Trustee for the account of the Issuer and are to be deposited in
the Bond Fund (except as may be otherwise provided in a home office payment
agreement authorized by the provisions of Section 2.08 hereof). Said rental
payments are sufficient in amount and become due in a timely manner so as to
insure the prompt payment of the principal of and interest on the Bonds.
The Bond Purchase Agreement contains a home office payment agreement in
satisfaction of the requirements of Section 2.08 hereof.
The Lessee has also executed the Guaranty Agreement wherein the Lessee,
as guarantor, has absolutely and unconditionally guaranteed the full and prompt
payment of the principal of and interest on the Bonds.
SECTION 6.02. CREATION OF THE BOND FUND. There is hereby created by the
Issuer and ordered established with the Trustee a trust fund to be designated
"Development Authority of Heard County Bond Fund - Tenaska Georgia Partners,
L.P. Project, Series 1999", which shall be used to pay the principal of and
interest on the Bonds. There shall be established as trust accounts within
the Bond Fund a General Account and a Special Account. The Special Account
may be established by the Trustee for bookkeeping purposes only and moneys
designated as being held in the Special Account may be held in any segregated
account designated by the Trustee for such purpose. Any reference in this
Indenture to "Bond Fund" without further qualification or explanation shall
constitute a reference to said General Account.
SECTION 6.03. PAYMENTS INTO THE BOND FUND. There shall be paid into the
Bond Fund, as and when received, (a) all rental payments specified in Section
5.3 of the Lease Agreement (except for any moneys paid directly to the owner
of a fully registered Bond pursuant to the provisions at a home office
payment agreement permitted pursuant to Section 2.08 above
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and described in Section 6.01 above), (b) all moneys, if any, required to be so
deposited from the Construction Fund as provided in the Collateral Agency
Agreement, (c) all other moneys received by the Trustee under and pursuant to
any of the provisions of the Lease Agreement, the Collateral Agency Agreement,
the Security Deed or this Indenture which are required or which are accompanied
by directions that such moneys are to be paid into the Bond Fund, and (d) any
moneys received from the Lessee, as guarantor pursuant to the Guaranty
Agreement.
The Issuer covenants that so long as any of the Bonds are outstanding
it will pay, or cause to be paid, into the Bond Fund from the sources of payment
described in Section 6.01 hereof sufficient moneys to promptly pay the principal
of and interest on the Bonds as the same become due and payable. Nothing herein
shall be construed as requiring the Issuer to operate the Project or to use any
funds from any source to pay the principal of and interest on the Bonds or to
pay the costs of maintaining and insuring the Project other than rents, revenues
and receipts arising out of or in connection with its ownership of the Project.
SECTION 6.04. USE OF MONEYS IN THE BOND FUND.
(a) Except as provided in Section 6.09 hereof, moneys in the Bond
Fund shall be used solely for the payment of the principal of and interest
on the Bonds. No part of the rental payments under the Lease Agreement
required to be paid into the Bond Fund (excluding prepayments under
Section 9.5 of the Lease Agreement) shall be used to redeem, prior to
maturity, a portion of any Bond; provided, that whenever the moneys held
in the Bond Fund (in the General Account and in the Special Account) from
any source whatsoever are sufficient to redeem or otherwise pay all of the
Bonds and to pay interest to accrue thereon prior to such redemption or
other payment, the Issuer agrees to take and cause to be taken the
necessary steps to redeem all of the Bonds from the sources herein
provided on the next succeeding redemption date for which the required
redemption notice can be given; and, provided further, that any moneys in
the Bond Fund other than rental payments may, at the direction of the
Lessee, be used to redeem a portion of the Bonds so long as the Lessee is
not in default with respect to any rental payments under the Lease
Agreement.
(b) At the maturity date or redemption date prior to maturity of each
Bond the Trustee shall transfer from the General Account in the Bond Fund
to the Special Account in the Bond Fund sufficient moneys to pay the
principal or redemption price of and interest then due and payable with
respect to each such Bond. Moneys so transferred into said Special Account
shall not thereafter be invested in any manner but shall be held by the
Trustee without liability on the part of the Trustee or the Issuer for
interest thereon until actually paid out for the purposes intended.
The Issuer hereby authorizes and directs the Trustee to withdraw, from
time to time, sufficient moneys from the Special Account in the Bond Fund to pay
the principal or redemption price of and interest on the Bonds as the same
become due and payable, which authorization and direction the Trustee hereby
accepts.
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SECTION 6.05. CUSTODY OF THE BOND FUND. The Bond Fund shall be held by the
Trustee as a trust fund for the benefit of the owners of the Bonds. The General
Account and the Special Account established in the Bond Fund shall constitute
trust accounts.
SECTION 6.06. NON-PRESENTMENT OF BONDS AT MATURITY. If any Bond shall not
be presented for payment when the principal thereof becomes due, either at
maturity or at the prepayment date, provided moneys sufficient to pay such Bond
shall have been made available to the Trustee and are held in the Special
Account in the Bond Fund for the benefit of the owner thereof, all liability of
the Issuer to the owner thereof for the payment of such Bond shall forthwith
cease, determine and be completely discharged, and thereupon it shall be the
duty of the Trustee to hold such moneys in said Special Account, without
liability for interest thereon, for the benefit of the owner of such Bond who
shall thereafter be restricted exclusively to moneys held in said special
account, for any claim of whatever nature on his part under this Indenture or
on, or with respect to, such Bond.
SECTION 6.07. TRUSTEE'S FEES, CHARGES AND EXPENSES. Pursuant to the terms
of the Lease Agreement the Lessee has agreed to pay directly to the Trustee,
until the principal of and interest on the Bonds shall have been paid in full:
(i) an amount equal to the annual fee of the Trustee for its services rendered
as Trustee, paying agent and Bond Registrar and its expenses incurred under this
Indenture, as and when the same become due, (ii) the reasonable fees and
expenses of Trustee's Counsel, as and when the same become due. It is further
understood and agreed that the initial or acceptance fees of the Trustee and the
fees, charges and expenses of the Trustee and Trustee's Counsel referred to in
the preceding sentence which become due prior to the time the Lessee becomes
obligated to pay the same, will be paid to the Trustee, as and when the same
shall become due, as set forth in Section 4.3 of the Lease Agreement.
SECTION 6.08. MONEYS TO BE HELD IN TRUST. All moneys, if any, paid over to
the Trustee for the account of the Bond Fund under any provision of this
Indenture shall be held in trust by the Trustee for the benefit of the owners of
the Bonds entitled to be paid therefrom.
SECTION 6.09. REPAYMENT TO THE LESSEE FROM THE BOND FUND.
(a) Any moneys remaining in the General Account in the Bond Fund after
payment in full of all Bonds (taking into consideration that sufficient
moneys or obligations such as are described in Section 10.02 hereof have
been transferred to and/or deposited in the Special Account in the Bond
Fund to pay all principal of and interest then due and payable with respect
to each Bond not yet presented for payment and to pay all principal and
interest relating to each Bond which is not yet due and payable but with
respect to which the lien of this Indenture has been defeased upon
compliance with Article X hereof) and of the fees, charges and expenses of
the Trustee, any paying agents and the Bond Registrar which have accrued
and which will accrue and all other items required to be paid hereunder
(other than items payable from the Special Account in the Bond Fund), shall
be paid to the Collateral Agent upon the expiration or sooner termination
of the term of the Lease Agreement.
(b) Any moneys held by the Trustee in the Special Account in the Bond
Fund
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in trust for the payment of the principal of or interest on any Bond
remaining unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Collateral Agent, and the owner
of such Bond shall thereafter, as an unsecured general creditor, look only
to the Lessee for the payment thereof and all liability of the Issuer and
the Trustee with respect to such trust money shall thereupon cease.
ARTICLE VII
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 7.01. CONSTRUCTION FUND; DISBURSEMENTS. The proceeds derived from
the sale of the Bonds and moneys received from the Lessee pursuant to Section
6.2 of the Lease Agreement shall be paid into the Construction Fund under the
Collateral Agency Agreement. Moneys in the Construction Fund shall be disbursed
in the manner and subject to the conditions set forth in the Collateral Agency
Agreement, upon receipt of requisitions submitted to the Collateral Agent in
accordance with Section 3.1 of the Collateral Agency Agreement, which shall
contain, among other things, certain representations and certifications by the
Lessee, including that proceeds derived from the sale of the Bonds have been,
and will be, spent only on Project Costs, as defined in the Common Agreement.
SECTION 7.02. COMPLETION OF THE PROJECT. The completion of the acquisition,
construction and installation of the Project and the payment of all costs and
expenses incident thereto shall be evidenced by the filing with the Trustee of
(i) the certificate of the Lessee executed on behalf of the Lessee by an
Authorized Lessee Representative required by Section 4.5 of the Lease Agreement
and (ii) a certificate signed on behalf of the Issuer by the Authorized Issuer
Representative and on behalf of the Lessee by an Authorized Lessee
Representative (designated pursuant to the terms of the Lease Agreement), which
certificate shall state that all costs and expenses in connection with the
Project and payable out of the Construction Fund have been paid except for costs
and expenses not then due and payable with respect to which funds are being
retained in the Construction Fund with the approval of the Lessee and the Issuer
for the payment of the same. Any moneys remaining in the Construction Fund
shall, without further authorization be applied or disbursed in accordance with
the Collateral Agency Agreement.
SECTION 7.03. APPOINTMENT OF AGENT. The Trustee hereby appoints the
Collateral Agent as its agent under the Collateral Agency Agreement in
connection with the administration of the Project Funds thereunder.
ARTICLE VIII
INVESTMENTS
SECTION 8.01. BOND FUND INVESTMENTS. Moneys held in the Bond Fund (other
than moneys held in the Special Account in the Bond Fund referred to in Section
6.04(b) hereof) shall be invested and reinvested by the Trustee in Permitted
Investments at the oral direction of the Lessee, promptly confirmed in writing,
in accordance with Section 4.8 of the Lease Agreement. Such investments shall be
held by or under the control of the Trustee and shall be
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deemed at all times a part of the Bond Fund and the interest accruing thereon
and any profit resulting therefrom shall be credited to the Bond Fund and any
loss resulting therefrom shall be charged to the Bond Fund. The Trustee is
directed to sell and convert to cash a sufficient amount of such investments in
the Bond Fund whenever the cash held in the Bond Fund is insufficient to provide
for the payment of the principal of (whether at the maturity date or prepayment
date prior to maturity) and interest on the Bonds as the same become due and
payable.
Unless otherwise confirmed in writing, an account statement delivered
by the Trustee to the Lessee shall be deemed written confirmation by the Lessee
that the investment transactions identified therein accurately reflect the
investment directions given to the Trustee by the Lessee, unless the Lessee
notifies the Trustee in writing to the contrary within 30 days of the date of
receipt of such statement.
ARTICLE IX
POSSESSION, USE AND PARTIAL RELEASE OF PROJECT
SECTION 9.01. SUBORDINATION TO RIGHTS OF THE LESSEE. So long no Event of
Default exists under the Lease Agreement, the Security Deed or this Indenture,
the rights, options and privileges hereunder of the Trustee (other than rights
of the Trustee set forth in Article XII hereof) and the owners of the Bonds, are
specifically made subject and subordinate to the rights, options, obligations
and privileges of the Lessee set forth in the Lease Agreement. So long as not
otherwise provided in this Indenture, the Lessee shall be suffered and permitted
to possess, use and enjoy the Project and its appurtenances so as to carry out
its obligations under the Lease Agreement.
SECTION 9.02. RELEASE OF CERTAIN LAND. Reference is made to the provisions
of the Lease Agreement, including, without limitation, Sections 8.6 and 11.3
thereof, wherein the Issuer and the Lessee have reserved the right to withdraw
certain portions of the Leased Land from the Lease Agreement and the Security
Deed upon compliance with the terms and conditions of the Lease Agreement. The
Trustee shall release from this Indenture all rights to and liens on such
portion of the Leased Land and the revenues and receipts derived from such
released land upon compliance with the provisions of the Lease Agreement and the
Security Deed. The Trustee is hereby authorized and directed to execute and
record or cause to be executed and to be properly recorded any and all
instruments reasonably requested by the Lessee to effectuate a conveyance of the
Leased Land so released and to terminate any security interest or other lien
with respect thereto.
SECTION 9.03. RELEASE OF LEASED EQUIPMENT. Reference is made to the
provisions of the Lease Agreement, including, without limitation, Section 6.2
thereof, wherein the Lessee has reserved the right to withdraw certain items of
Leased Equipment from the Lease Agreement and the Security Deed upon compliance
with the terms and conditions of the Lease Agreement. The Trustee shall at the
request of the Issuer or the Lessee confirm that all rights to and liens on such
portion of the Leased Equipment and the rents, revenues and receipts derived
from such withdrawn items under this Indenture shall be relinquished upon
compliance with the provisions of the Lease Agreement and the Security Deed. The
Trustee is hereby authorized and directed to execute and record or cause to be
executed and properly recorded any and all
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instruments reasonably requested by the Lessee to effectuate a conveyance of the
Leased Equipment so released and to terminate any security interest or other
lien with respect thereto.
SECTION 9.04. GRANTING OR RELEASE OF EASEMENTS; AMENDMENTS OR MODIFICATIONS
TO EASEMENTS. Reference is made to the provisions of the Lease Agreement,
including, without limitation, Section 8.5 thereof, wherein the Lessee has
reserved the right to grant or release easements or to amend or modify easements
and take other action upon compliance with the terms and conditions of the Lease
Agreement. The Trustee shall confirm in writing any action taken by the Lessee
under said Section 8.5 upon compliance with the provisions of the Lease
Agreement.
ARTICLE X
DISCHARGE OF LIEN
SECTION 10.01. DISCHARGE OF LIEN. If the Issuer shall pay or cause to be
paid the principal of and interest on the Bonds at the times and in the manner
stipulated therein and herein, and if the Issuer shall keep, perform and observe
all and singular the covenants and agreements in the Bonds and in this Indenture
expressed as to be kept, performed and observed by it or on its part, then the
lien of this Indenture, these presents and the Trust Estate shall cease,
determine and be void, and thereupon the Trustee shall cancel and discharge this
Indenture, the Security Deed and the Security Interests, and shall execute and
deliver to the Issuer such instruments in writing as shall be required to cancel
and discharge this Indenture, the Security Deed and the Security Interest, and
reconvey to the Issuer the Trust Estate, and assign and deliver to the Issuer so
much of the Trust Estate as may be in its possession or subject to its control,
except for moneys and Government Obligations held in the Bond Fund for the
purpose of paying Bonds which have not yet been presented for payment and moneys
and obligations in the Bond Fund required to be paid to the Lessee pursuant to
Section 6.09 hereof. At the written direction of the Lessee and upon Payment in
Full of the Bonds, the Trustee shall deliver the Quitclaim Deed to the Lessee.
SECTION 10.02. PROVISION FOR PAYMENT OF BONDS. Bonds shall be deemed to
have been paid within the meaning of Section 10.01 hereof if:
(a) (i) there shall have been irrevocably deposited in the
Bond Fund either
(A) sufficient moneys, or
(B) Government Obligations of such maturities and interest
payment dates and bearing such interest as will, in the opinion
of a nationally recognized certified public accountant or firm
thereof, without further investment or reinvestment of either the
principal amount thereof or the interest earnings thereon (said
earnings to be held in trust also), be sufficient, together with
any moneys referred to in subsection (i) above, for the payment
at their respective maturities or prepayment dates prior to
maturity, of the principal thereof, together
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with the interest accrued and to accrue to such maturity or
prepayment dates, as the case may be; and
(ii) if any Bonds are to be prepaid on any date prior to their
maturity, the Issuer shall have given to the Trustee in form
satisfactory to the Trustee irrevocable instructions to prepay such
Bonds on such date and either evidence satisfactory to the Trustee
that all prepayment notices required by this Indenture have been given
or irrevocable power authorizing the Trustee to give such prepayment
notices; or
(b) with respect to any Bond, the owner thereof shall have
deposited such Bond with the Trustee with irrevocable instructions to
the Trustee that such Bond shall be cancelled; and
(c) with respect to both (a) and (b), above, there shall have
been paid to the Trustee all Trustee's fees and expenses (including
its fees and expenses in connection with its duties as paying agent
and bond registrar) due or to become due in connection with the
payment or prepayment of the Bonds.
SECTION 10.03. DISCHARGE OF THE INDENTURE. Notwithstanding the fact that
the lien of this Indenture upon the Trust Estate may have been discharged and
cancelled in accordance with Section 10.01 hereof, this Indenture and the rights
granted and duties imposed hereby, to the extent not inconsistent with the fact
that the lien upon the Trust Estate may have been discharged and cancelled,
shall nevertheless continue and subsist until the principal of and interest on
all of the Bonds shall have been fully paid or the Trustee shall have returned
to the Lessee pursuant to this Indenture all funds theretofore held by the
Trustee for payment of any Bonds not theretofore presented for payment.
ARTICLE XI
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
SECTION 11.01. DEFAULTS; EVENTS OF DEFAULT. The declaration of a "Trigger
under the Collateral Agency Agreement, subject to the terms of Section 11.12
hereof, is hereby defined as and declared to be and to constitute an "event of
default" under this Indenture.
SECTION 11.02. ACCELERATION. Upon the occurrence of an event of default,
the Trustee may, with the written consent of the Collateral Agent, and shall,
upon written direction of the Collateral Agent, by notice to the Issuer, declare
the entire unpaid principal of and interest on the Bonds due and payable; and
upon such declaration, the said principal, together with interest accrued
thereon, shall become payable immediately at the place of payment provided
therein, anything in this Indenture or in the Bonds to the contrary
notwithstanding. Upon any declaration of acceleration hereunder, the Trustee
shall immediately declare all rental payments due under the Lease Agreement to
be immediately due and payable in accordance with Section 10.2 of the Lease
Agreement.
SECTION 11.03. SURRENDER OF POSSESSION OF PROJECT; RIGHTS AND DUTIES OF
TRUSTEE IN POSSESSION. Upon the occurrence of an event of default the Lessee,
upon demand of the Trustee in accordance with the instruction of the Collateral
Agent, shall forthwith surrender the
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possession of, and it shall be lawful for the Trustee, by such officer or agent
as it may appoint, to take possession of all or any part of the Project,
including the rights and the position of the Issuer under the Lease Agreement,
and the Trustee shall be authorized to hold, operate and manage the same, and,
from time to time, make all needful repairs and improvements as it shall deem
wise; and the Trustee, subject to the Lease Agreement may, in accordance with
the instruction of the Collateral Agent, lease the Project or any part thereof
in the name and for the account of the Issuer and collect, receive and sequester
the rents, revenues, earnings, income, products and profits therefrom, and out
of the same and of any moneys received from any receiver of the same, pay
expenses of so taking, holding and managing the same, including reasonable
compensation to the Trustee, its agent and counsel, and any charges of the
Trustee hereunder, and any taxes and assessments and other charges prior to the
lien and security interests of this Indenture and the Security Deed which the
Trustee may deem it wise to pay, and all expenses of such repairs and
improvements, and apply the remainder of the moneys to received in accordance
with the provisions of Section 11.09. Whenever all that is due and payable with
respect to the Bonds shall have been paid in full or all defaults under this
Indenture made good, the Trustee shall surrender possession to the Issuer, its
successors or assigns, but the Trustee shall have the same right of entry upon
any subsequent event of default hereunder.
While in possession of such property, the Trustee shall render annually
to the Issuer and the Lessee and also to the owners of the Bonds at their
addresses as shown by the registration books kept by the Trustee a summarized
statement of income and expenditures in connection therewith.
SECTION 11.04. OTHER REMEDIES. Upon the occurrence and continuance of an
event of default the Trustee shall have the power to proceed, in accordance with
the instructions of the Collateral Agent, with any right or remedy granted by
the Constitution and laws of the State of Georgia, as it may deem best,
including any suit, action or special proceeding in equity or at law for the
specific performance of any covenant or agreement contained herein or for the
enforcement of any proper, legal or equitable remedy as the Trustee shall deem
most effectual to protect the rights aforesaid, insofar as such may be
authorized by law, and the right to the appointment, as a matter of right and
without regard to the sufficiency of the security afforded by the Trust Estate,
of a receiver for all or any part of the Trust Estate and the rents, revenues
and receipts thereof; the rights herein specified are to be cumulative to all
other available rights, remedies or powers and shall not exclude any such
rights, remedies or powers. Without intending to limit the foregoing rights,
remedies and powers by virtue of such specification, the Trustee is authorized
to exercise any and all rights available from time to time under the U.C.C.
including the right to further assign the Issuer's right, title and interest in
the Lease Agreement to a successor trustee in the manner set forth in this
Indenture.
SECTION 11.05. RIGHTS OF BONDHOLDERS. Upon the occurrence and continuance
of an event of default and if requested so to do by the owners of a majority in
principal amount of Bonds outstanding and provision of indemnity to the Trustee
as provided in Section 12.01(m) hereof, the Trustee shall be obliged to exercise
such one or more of the rights and remedies conferred by this Article as such
owners of the Bonds shall have instructed the Trustee, subject, however to the
provisions of Section 12.15.
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No right or remedy by the terms of this Indenture conferred upon or
reserved to the Trustee (or to the owners of the Bonds) is intended to be
exclusive of any other right or remedy, but each and every such right and remedy
shall be cumulative and shall be in addition to any other right or remedy given
to the Trustee or to the owners of the Bonds or now or hereafter existing at
law, in equity or by statute.
No delay or omission to exercise any right or remedy accruing upon any
event of default shall impair any such right or remedy or shall be construed to
be a waiver of any such event of default or acquiescence therein; and every such
right and remedy may be exercised from time to time and as often as may be
deemed expedient.
No waiver of any event of default hereunder, whether by the Trustee or
by the owners of the Bonds, shall extend to or shall affect any subsequent event
of default or shall impair any rights or remedies consequent thereon.
SECTION 11.06. RIGHT OF OWNERS OF THE BONDS TO DIRECT PROCEEDINGS. Anything
in this Indenture to the contrary notwithstanding, upon the occurrence and
continuance of an event of default, the owners of a majority in principal amount
of Bonds outstanding shall have the right, at any time, by an instrument or
instruments in writing executed and delivered to the Trustee, to direct the
method and place of conducting all proceedings to be taken in connection with
the enforcement of the terms and conditions of this Indenture, or for the
appointment of a receiver or any other proceedings hereunder; provided, that
such direction shall not be otherwise than in accordance with the provisions of
law and of this Indenture.
SECTION 11.07. APPOINTMENT OF RECEIVERS. Upon the occurrence of an event of
default and upon the filing of a suit or other commencement of judicial
proceedings to enforce the rights and remedies of the Trustee and of the owners
of the Bonds under this Indenture, the Trustee shall, with the consent of the
Collateral Agent, be entitled, as a matter of right, to the appointment of a
receiver or receivers of the Project and of the rents, revenues and receipts
thereof and therefrom, pending such proceedings, with such powers as the court
making such appointment shall confer.
SECTION 11.08. WAIVER OF BENEFIT OF LAWS. Upon the occurrence of an event
of default, to the extent that such rights may then lawfully be waived, neither
the Issuer, nor anyone claiming through or under it, shall set up, claim or seek
to take advantage of any appraisement, valuation, stay, extension or redemption
laws now or hereafter in force, in order to prevent or hinder the enforcement of
the Security Deed or the foreclosure of the Security Deed, but the Issuer, for
itself and all who may claim through or under it, hereby waives, to the extent
that they lawfully may do so, the benefit of all such laws and all right of
appraisement and redemption to which it may be entitled under the laws of the
State.
SECTION 11.09. APPLICATION OF MONEYS. All moneys received by the Trustee
pursuant to any right given or action taken under the provisions of this Article
shall be transferred to the Collateral Agent and disbursed in accordance with
the Collateral Agency Agreement.
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Whenever all Bonds and interest thereon have been paid under the
provisions of this Section 11.09 and all expenses and charges of the Trustee
have been paid, any balance remaining in the Bond Fund shall, subject to the
Lease Agreement, be paid to the Lessee as provided in Section 6.09 hereof.
SECTION 11.10. RIGHTS AND REMEDIES VESTED IN TRUSTEE. Subject to the
provisions of Section 11.05, all rights and remedies of action (including the
right to file proof of claims) under this Indenture or under any of the Bonds
may be enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceedings relating thereto and any
such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee without the necessity of joining as plaintiffs or defendants any
owners of the Bonds, and any recovery of judgment shall be for the equal benefit
of the owners of the Bonds.
SECTION 11.11. RIGHTS AND REMEDIES OF OWNERS OF THE BONDS. No owner of any
Bonds shall have any right to institute any suit, action or proceeding in equity
or at law for the enforcement of this Indenture, for the execution of any trust
thereof or for the appointment of a receiver or to enforce any other right or
remedy hereunder, unless a default has occurred of which the Trustee has been
notified as provided in subsection (h) of Section 12.01 hereof, or of which by
said subsection it is deemed to have notice, and in either case unless (i) such
default shall have become an event of default and the owners of 100% in
principal amount of Bonds outstanding shall have made written request to the
Trustee and shall have offered reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such action, suit or
proceeding in its own name, such owners have offered to the Trustee indemnity as
provided in Section 12.01(m) hereof, (ii) the written consent of the Collateral
Agent shall have been obtained, and (iii) the Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore granted, or to institute such action,
suit or proceeding in its, his or their own name or names. Such notification,
request and offer of indemnity are hereby declared in every case at the option
of the Trustee to be conditions precedent to the execution of the powers and
trusts of this Indenture and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a receiver or for any
other right or remedy hereunder; it being understood and intended that no one or
more owners of the Bonds shall have any right in any manner whatsoever to
affect, disturb or prejudice the lien of this Indenture by its, his or their
action or to enforce any right or remedy hereunder except in the manner herein
provided, and that all proceedings at law or in equity shall be instituted, had
and maintained in the manner herein provided and for the equal benefit of the
owners of all Bonds. Nothing in this Indenture contained shall, however, affect
or impair the right of any owner of the Bonds to enforce the payment of the
principal of and interest on any Bond at and after the maturity thereof, or the
obligation of the Issuer to pay the principal of and interest on each of the
Bonds issued hereunder to the respective owners hereof at the time, place, from
the source and in the manner expressed in the Bonds.
SECTION 11.12. TERMINATION OF PROCEEDINGS. In case the Trustee shall have
proceeded to enforce any right or remedy under this Indenture by the appointment
of a receiver, by entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely, then and in every such case the Issuer and the Trustee shall be
restored to their former positions and rights hereunder with respect to the
Trust Estate, and all rights, remedies and powers of the Trustee shall continue
as if no such proceedings had been taken.
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SECTION 11.13. WAIVERS OF EVENTS OF DEFAULT. The Trustee, with the consent
of the Collateral Agent, (a) may waive any event of default hereunder and its
consequences and rescind any declaration of maturity of principal and its
consequences, if such event of default has been cured and there is no longer
continuing any default hereunder, and (b) shall waive any event of default
hereunder and its consequences and rescind any declaration of maturity of
principal, upon the written request of the owners of a majority in principal
amount of the Bonds outstanding; provided, however, that there shall not be
waived (i) any event of default pertaining to the payment of the principal of
any Bond at its maturity date or any prepayment date prior to maturity, or (ii)
any event of default pertaining to the payment when due of the interest on any
Bond, unless prior to such waiver or rescission, all arrears of principal (due
otherwise than by declaration) and interest, with interest (to the extent
permitted by law) at the rate borne by the Bonds on overdue installments of
principal and interest and all arrears of payments of principal when due, as the
case may be, and all expenses of the Trustee due hereunder in connection with
such event of default, shall have been paid or provided for, and in case of any
such waiver or rescission, then the Issuer, the Trustee and the owners of the
Bonds shall be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to any subsequent or
other event of default, or impair any right consequent thereon.
ARTICLE XII
THE TRUSTEE
SECTION 12.01. ACCEPTANCE OF THE TRUSTS. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform such duties and
only such duties as are specifically set forth in this Indenture upon and
subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of an event of default and
after the curing of all events of default which may have occurred,
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee. In
case an event of default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) The Trustee may consult with counsel selected by it and the
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by agents or attorneys
and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed in good
faith by it hereunder.
(d) The Trustee shall not be responsible for any recital herein, or in
the Bonds
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(except in respect to the authentication certificate of the Trustee
endorsed on the Bonds), or for the recording or rerecording, filing or
re-filing of this Indenture, the Lease Agreement or the Security Deed,
or for insuring the Trust Estate or any part of the Project or
collecting any insurance moneys, or for the validity of the execution
by the Issuer of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the
security for the Bonds, or for the value of or title in and to the
Trust Estate or any part of the Project or otherwise as to the
maintenance of the security hereof; provided that, as set forth in
Section 8.8 of the Lease, the Trustee shall provide its reasonable
cooperation to the Issuer and the Lessee in the filing of continuation
statements relating to the liens and security interests created under
the Security Deed and this Indenture; and provided further that if the
Trustee enters into possession of a part or all of the Trust Estate
pursuant to any provision of this Indenture it shall use due diligence
in preserving the same, and the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any
covenants, agreements or conditions on the part of the Issuer or on
the part of the Lessee under the Lease Agreement, except as
hereinafter set forth; but the Trustee may require of the Issuer or
the Lessee full information and advice as to the performance of the
covenants, agreements and conditions aforesaid and as to the condition
of the Trust Estate. The Trustee shall not be liable for any loss
suffered in connection with any investment of funds made by it in
accordance with Section 8.01 and 8.02 hereof.
(e) The Trustee may become the owner of Bonds with the same rights
which it would have if it were not Trustee.
(f) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or documents believed to be genuine and correct and to have
been signed or sent by the proper Person or Persons. Any action taken by
the Trustee, pursuant to this Indenture upon the request, authority or
consent of any Person who at the time of making such request or giving
such authority or consent is the owner of any Bond, shall be conclusive
and binding upon all future owners of the same Bond and upon Bonds
issued in exchange therefor or in place thereof.
(g) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate signed on behalf
of the Issuer by the Chairman or Vice Chairman of the Issuer and
attested by the Secretary of the Issuer as sufficient evidence of the
facts therein contained and prior to the occurrence of a default of
which the Trustee has been notified as provided in subsection (h) of
this Section, or of which by said subsection it is deemed to have
notice, shall also be at liberty to accept a similar certificate to
the effect that any particular dealing, transaction or action is
necessary or expedient, but may at its discretion secure such further
evidence deemed necessary or advisable, but shall in no case be bound
to secure the same. The Trustee may accept a certificate of the
Secretary of the Issuer under its seal to the effect that a resolution
in the form therein set forth has been adopted by the Issuer as
conclusive evidence that such resolution has been duly adopted, and is
in full force and effect.
(h) The right of the Trustee to do things enumerated in this
Indenture shall not
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be construed as a duty and the Trustee shall not be answerable for
other than its gross negligence or willful default.
(i) The Trustee shall not be personally liable for any debts
contracted or for damages to persons or property, or for salaries or
nonfulfillment of contracts during any period in which it may be in
the possession of or managing the Project as in this Indenture
provided.
(j) At reasonable times the Trustee, and its duly authorized agents,
attorneys, experts, engineers, accountants and representatives who are
acceptable to the Lessee, and accompanied by an official of the
Lessee, shall have the right to inspect the Project as well as all
books, papers and records of the Issuer pertaining to the Project and
the Bonds, and to take copies of such memoranda from and in regard
thereto only as required from the books, papers and records of the
Issuer.
(k) The Trustee shall not be required to give any bond or surety in
respect of the execution of the said trusts and powers or otherwise in
respect of the premises.
(l) Notwithstanding anything elsewhere in this Indenture contained,
the Trustee shall have the right, but shall not be required, to
demand, in respect of the authentication of any Bonds, the withdrawal
of any cash, the release of any property, or any action whatsoever
within the purview of this Indenture, any showings, certificates,
opinions of Counsel, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee relevant to and
deemed desirable in connection with the authentication of any Bonds,
the withdrawal of any cash, or the taking of any other action by the
Trustee.
(m) Before taking any action hereunder the Trustee may require that
a satisfactory indemnity bond be furnished for the reimbursement of
all expenses to which it may be put and to protect it against all
liability, except liability which is adjudicated to have resulted from
the gross negligence or willful misconduct of the Trustee by reason of
any action so taken. None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise to incur financial liability in the performance of any of
its duties or the exercise of any of its rights or powers hereunder.
(n) All moneys received by the Trustee or any paying agent for the
Bonds shall, until used or applied or invested as herein provided, be
held in trust for the purpose for which they were received but need not
be segregated from other funds except to the extent required herein or
by law. Neither the Trustee nor any such paying agent shall be under any
liability for interest on any moneys received hereunder except such as
may be agreed upon.
SECTION 12.02. FEES, CHARGES AND EXPENSES OF TRUSTEE. The Trustee shall be
entitled to payment and/or reimbursement for reasonable fees for its services
rendered hereunder and all advances, reasonable Counsel fees and expenses and
other expenses reasonably and necessarily made or incurred by the Trustee in
connection with such services. Upon the occurrence of an event of default, but
only upon such occurrence, the Trustee shall have a first
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lien on the Trust Estate with right of payment prior to payment of the principal
of and interest on any Bond for the foregoing advances, fees, costs and expenses
incurred.
SECTION 12.03. [INTENTIONALLY OMITTED].
SECTION 12.04. INTERVENTION BY TRUSTEE. In any judicial proceeding to which
the Issuer is a party which, in the opinion of the Trustee and its Counsel, has
a substantial bearing on the interest of the owners of the Bonds, the Trustee
shall intervene on behalf of the owners of the Bonds if so requested in writing
by the owners of at least 100% in principal amount of the Bonds. The rights and
obligations of the Trustee under this Section are subject to the approval of a
court of competent jurisdiction.
SECTION 12.05. SUCCESSOR TRUSTEE. Any corporation or association into which
the Trustee may be converted or merged, or with which it may be consolidated, or
to which it may sell or transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
such conversion, merger, consolidation, sale or transfer to which it is a party,
IPSO FACTO, shall be and become successor Trustee hereunder and vested with all
of the title to the Trust Estate and all the trusts, powers, discretions,
immunities, privileges and all other matters as was its predecessor, without the
execution or filing of any instrument or any further act, deed or conveyance on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 12.06. RESIGNATION BY THE TRUSTEE. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by giving 30 days'
written notice to the Issuer and the Lessee and by first class mail to each
registered owner of Bonds, and such resignation shall take effect at the end of
such 30 day period, or upon the earlier appointment of a successor Trustee by
the owners of the Bonds or by the Issuer. Such notice to the Issuer may be
served personally or sent by registered or certified mail.
SECTION 12.07. REMOVAL OF THE TRUSTEE. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer, and signed by the owners of a majority in principal
amount of the Bonds.
SECTION 12.08. APPOINTMENT OF SUCCESSOR TRUSTEE BY THE OWNERS OF THE BONDS;
TEMPORARY TRUSTEE. If the Trustee hereunder shall resign, be removed, be
dissolved, be in course of dissolution or liquidation, or shall otherwise become
incapable of acting hereunder or in case it shall be taken under the control of
any public officer, officers or a receiver appointed by a court, a successor may
be appointed by the owners of a majority in principal amount of the Bonds, by an
instrument or concurrent instruments in writing signed by such owners, or by
their attorneys in fact, duly authorized; provided, nevertheless, that in case
of such vacancy the Issuer by an instrument signed by the Chairman of the Issuer
and attested by the Secretary of the Issuer under its seal, may appoint a
temporary Trustee to fill such vacancy until a successor Trustee shall be
appointed by the owners of the Bonds in the manner above provided; and any such
temporary Trustee shall immediately and without further act be superseded by the
Trustee so appointed by such owners of the Bonds. Every such Trustee appointed
pursuant to the provisions of this Section shall be a trust company or bank
(having trust powers) in good standing, within or outside the State of Georgia,
having an unimpaired capital and surplus of not
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less than fifty million dollars ($50,000,000), if there be such an institution
willing, qualified and able to accept the trust upon reasonable or customary
terms.
SECTION 12.09. CONCERNING ANY SUCCESSOR TRUSTEE. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates, properties, rights,
powers, trusts, duties and obligations of its predecessor; but such predecessor
shall, nevertheless, on the written request of the Issuer, or of its successor,
execute and deliver an instrument transferring to such successor Trustee all the
estates, properties, rights, powers and trusts of such predecessor hereunder;
and every predecessor Trustee shall deliver all securities and moneys held by it
as Trustee hereunder to its successor. Should any instrument in writing from the
Issuer be required by any successor Trustee in order to more fully and certainly
vest in such successor the estates, properties, rights, powers and trusts hereby
vested or intended to be vested in the predecessor any and all such instruments
in writing shall, on request, be executed, acknowledged and delivered by the
Issuer. The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder, together with all
other instruments provided for in this Article, shall be filed and/or recorded
by the successor Trustee in each recording office where the Indenture and Lease
Agreement shall have been filed and/or recorded.
SECTION 12.10. RIGHT OF TRUSTEE TO PAY TAXES AND OTHER CHARGES. Subject to
the Lessee's rights to contest the following under the Lease, if any tax,
assessment or governmental or other charge upon any part of the Trust Estate or
the Project is not paid as required herein, the Trustee may pay such tax,
assessment or charge, without prejudice, however, to any rights of the Trustee
or the owners of the Bonds hereunder arising in consequence of such failure; and
any amount at any time so paid under this Section, with interest thereon from
the date of payment at the rate per annum borne by the Bonds, shall become so
much additional indebtedness secured by this Indenture, and the same shall be
given a preference in payment over the principal of and interest on the Bonds
and shall be paid out of the revenues and receipts from the Trust Estate, if not
otherwise caused to be paid; but the Trustee shall not be under obligation to
and shall not make any such payment unless it shall have been requested to do so
by the owners of a majority in principal amount of the Bonds and shall have been
provided with sufficient moneys for the purpose of making such payment.
SECTION 12.11. TRUSTEE PROTECTED IN RELYING UPON RESOLUTIONS, ETC. The
resolutions, opinions, certificates and other instruments provided for in this
Indenture may be accepted by the Trustee as conclusive evidence of the facts and
conclusions stated therein and shall be full warrant, protection and authority
to the Trustee for the release of property and the withdrawal of moneys
hereunder.
SECTION 12.12. SUCCESSOR TRUSTEE AS CUSTODIAN OF FUNDS, PAYING AGENT AND
BOND REGISTRAR. In the event of a change in the office of Trustee, the
predecessor Trustee which has resigned or has been removed shall cease to be the
owner of the Construction Fund and Bond Fund, paying agent for the principal of
and interest on the Bonds and Bond Registrar, and the successor Trustee shall
become such owner, paying agent and Bond Registrar.
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SECTION 12.13. TRUST ESTATE MAY BE VESTED IN CO-TRUSTEE. It is the purpose
of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the laws of the State of Georgia) denying
or restricting the right of banking corporations or associations to transact
business as a trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture, and in particular in case of the enforcement of
either the Indenture or the Lease Agreement upon the occurrence of an event of
default, it may be necessary that there be appointed an additional individual or
institution as a separate Trustee or Co-Trustee. The following provisions of
this Section 12.13 are adapted to these ends.
In the event of the incapacity or lack of authority of the Trustee, by
reason of any present or future law of any jurisdiction, to exercise any of the
rights, powers and trusts herein granted to the Trustee or to hold title to the
Trust Estate or to take any other action which may be necessary or desirable in
connection therewith, the Issuer with the consent of the Lessee may appoint, and
at the request of the Trustee shall appoint, a separate Trustee or Co-Trustee
and each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate Trustee or
Co-Trustee but only to the extent necessary to enable the separate Trustee or
Co-Trustee to exercise such rights, powers and trusts, and every covenant and
obligation necessary to the exercise thereof by such separate Trustee or
Co-Trustee shall run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Issuer be
required by the separate Trustee or Co-Trustee so appointed in order to more
fully and certainly vest in and confirm to him or it such properties, rights,
powers, trusts, duties and obligations, any and all such deeds, conveyances and
instruments shall, on request, be executed, acknowledged and delivered by the
Issuer. In case any separate Trustee or Co-Trustee or a successor to either,
shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such separate
Trustee or Co-Trustee, so far as permitted by law, shall vest in and be
exercised by the Trustee until the appointment of a new Trustee or successor to
such separate Trustee or Co-Trustee.
SECTION 12.14. [INTENTIONALLY OMITTED].
SECTION 12.15. THIS ARTICLE CONTROLS. Whether or not therein expressly so
provided every provision of this Indenture relating to the conduct or affecting
the liability of the Trustee shall be subject to the provisions of this Article
XII.
SECTION 12.16. CONSEQUENTIAL DAMAGES. Anything in this Indenture to the
contrary notwithstanding, in no event shall the Trustee be liable under or in
connection with this Indenture for indirect, special, incidental or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Trustee
and regardless of the form of action.
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ARTICLE XIII
SUPPLEMENTAL INDENTURES
SECTION 13.01. SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT OF OWNERS OF
THE BONDS. The Issuer and the Trustee may without the consent of, or notice to,
any of the owners of the Bonds, enter into an indenture or indentures
supplemental to this Indenture as shall not be inconsistent with the terms and
provisions hereof for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this
Indenture;
(b) to grant to or confer upon the Trustee for the benefit of the
owners of the Bonds any additional rights, remedies, powers or authorities
that may lawfully be granted to or conferred upon the owners of the Bonds
or the Trustee or either of them;
(c) to subject to the lien and pledge of this Indenture additional
rents, revenues or receipts, properties or collateral;
(d) in connection with the issuance of Additional Bonds;
(e) to modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the qualification
hereof and thereof under the Trust Indenture Act of 1939, as amended, or
any similar federal statute hereafter in effect or to permit the
qualification of the Bonds for sale under the securities laws of any of the
states of the United States of America, and, if they so determine, to add
hereto or to any indenture supplemental hereto such other terms, conditions
and provisions as may be permitted by said Trust Indenture Act of 1939 or
similar Federal statute;
(f) to evidence the appointment of a separate Trustee or Co-Trustee or
the succession of a new Trustee hereunder; or
(g) in connection with any other changes in this Indenture which
are not to the prejudice of the interests of any registered owner of the
Bonds, or in the judgment of the Trustee, are not to the prejudice of the
interests of the Trustee.
SECTION 13.02. SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF OWNERS OF THE
BONDS. Exclusive of supplemental indentures covered by Section 13.01 hereof and
subject to the terms and provisions contained in this Section, and not
otherwise, the owners of not less than a majority in principal amount of the
Bonds outstanding shall have the right, from time to time, anything contained in
this Indenture to the contrary notwithstanding, to consent to and approve the
execution by the Issuer and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer for
the purpose of modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Indenture or in any
supplemental indenture; provided, however, that nothing in this Section
contained shall permit, or be construed as permitting (a) an extension of the
maturity date (or mandatory sinking fund redemption) on which the principal of
or the interest on any
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Bond is, or is to become, due and payable, (b) a reduction in the principal
amount of any Bond or the rate of interest thereon, (c) a privilege or priority
of any Bond or Bonds over any other Bond or Bonds, or (d) a reduction in the
principal amount of the Bonds required for consent to such supplemental
indenture.
If the Issuer shall request the Trustee to enter into any such
supplemental indenture for any of the purposes of this Section, the Trustee
shall, upon being satisfactorily indemnified with respect to expenses, cause
notice of the proposed execution of such supplemental indenture to be given to
the owners of the Bonds. Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies thereof are on file
at the Principal Office of the Trustee for inspection by all owners of the
Bonds. If, within 60 days or such longer period as shall be prescribed by the
Issuer following the giving such notice, the owners of not less than a majority
in principal amount of the Bonds outstanding shall have consented to and
approved the execution of such supplemental indenture as herein provided, no
owner of any Bond shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or restrain the
Trustee or the Issuer from executing the same or from taking any action pursuant
to the provisions thereof. Upon the execution of any such supplemental indenture
as in this Section permitted and provided, this Indenture shall be modified and
amended in accordance therewith.
Anything herein to the contrary notwithstanding, a supplemental
indenture under this Article XIII which affects any right or obligation of the
Lessee under the Lease Agreement shall not become effective unless and until the
Lessee shall have consented to the execution and delivery of such supplemental
indenture. In this regard, the Trustee shall cause notice of the proposed
execution and delivery of any such supplemental indenture together with a copy
of the proposed supplemental indenture to be mailed by certified or registered
mail or overnight delivery to the Lessee at least 60 days prior to the proposed
date of execution and delivery of any such supplemental indenture. The Lessee
shall be deemed to have consented to the execution and delivery of any such
supplemental indenture if the Trustee does not receive a letter of protest or
objection thereto signed by or on behalf of the Lessee on or before 4:30 P.M.,
Eastern time, of the 60th day after the mailing of said notice and a copy of the
proposed supplemental indenture.
The Trustee shall have no obligation to execute any supplemental
indenture which affects its own rights, duties, obligations or compensation.
SECTION 13.03. TRUSTEE AUTHORIZED TO JOIN IN SUPPLEMENTS; RELIANCE ON
COUNSEL. The Trustee is authorized to join with the Issuer in the execution and
delivery of any supplemental indenture permitted by this Article XIII and, in so
doing, shall be fully protected by an opinion of Independent Counsel that such
supplemental indenture is so permitted and has been duly authorized by the
Issuer and that all things necessary to make it a valid and binding supplemental
indenture have been done.
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ARTICLE XIV
AMENDMENT OF LEASE AGREEMENT AND SECURITY DEED
SECTION 14.01. AMENDMENTS, ETC., TO LEASE AGREEMENT AND SECURITY DEED NOT
REQUIRING CONSENT OF OWNERS OF THE BONDS. The Trustee shall without the consent
of, or notice to, the owners of the Bonds consent to any amendment, change or
modification of the Lease Agreement or the Security Deed as may be required (i)
by the provisions of the Lease Agreement or the Security Deed or this Indenture,
(ii) for the purpose of curing any ambiguity or formal defect or omission in the
Lease Agreement or the Security Deed, (iii) in connection with additional real
property which pursuant to the Lease Agreement is to become part of the Leased
Land, (iv) in connection with the machinery, equipment and related property
described in Exhibit "B" to the Lease Agreement and Security Deed so as to more
precisely identify the same or substitute additional machinery, equipment and
related property acquired with the proceeds of the Bonds in accordance with the
provisions of Sections 4.1 and 6.2 of the Lease Agreement, (v) in connection
with additional real property which pursuant to Section 11.3 of the Lease
Agreement and the Security Deed is to become part of the Leased Land or in
connection with any real property to be released from the Leased Land pursuant
to Section 8.6 of the Lease Agreement and the Security Deed, (vi) in connection
with the issuance of Additional Bonds, or (vii) in connection with any other
change therein which, in the judgment of the Trustee, does not prejudice the
interests of the Trustee or the owners of the Bonds.
SECTION 14.02. AMENDMENTS, ETC., TO LEASE AGREEMENT AND SECURITY DEED
REQUIRING CONSENT OF OWNERS OF THE BONDS. Except for the amendments, changes or
modifications as provided in Section 14.01 hereof, neither the Issuer nor the
Trustee shall consent to any other amendment, change or modification of the
Lease Agreement without the delivery of notice and the written approval or
consent of the owners of not less than a majority in principal amount of the
Bonds outstanding given and procured as in Section 13.02 provided. If at any
time the Issuer and the Lessee shall request the consent of the Trustee to any
such proposed amendment, change or modification of the Lease Agreement or the
Security Deed, the Trustee shall, upon being satisfactorily indemnified with
respect to expenses, cause notice of such proposed amendment, change or
modification to be given in the same manner as provided by Section 13.02 hereof
with respect to proposed supplemental indentures; provided, however, that the
Trustee shall have no obligation to consent to the execution of any amendment,
change or modification of the Lease Agreement or the Security Deed which affects
its own rights, duties, obligations or compensation. Such notice shall briefly
set forth the nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are on file at the
Principal Office of the Trustee for inspection by owners of the Bonds.
SECTION 14.03. TRUSTEE AUTHORIZED TO JOIN IN AMENDMENTS; RELIANCE ON
COUNSEL. The Trustee is authorized to join with the Issuer in the execution and
delivery of any amendment permitted by this Article XIV and, in so doing, shall
be fully protected by an opinion of Independent Counsel that such amendment is
so permitted and has been duly authorized by the Issuer and that all things
necessary to make it a valid and binding agreement have been done.
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ARTICLE XV
MISCELLANEOUS
SECTION 15.01. CONSENTS, ETC. OF OWNERS OF THE BONDS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken
by the owners of the Bonds may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such owners
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and,
where it is hereby expressly required, to the Issuer and the Lessee.
Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee, the Lessee and the Issuer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by an officer of a
corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The fact and date of execution of any such instrument or writing
may also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(d) The ownership of Bonds shall be proved by the registration books
kept by the Trustee as Bond Registrar.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any owner of the Bonds shall bind every
future owner of the same Bond in respect of anything done or suffered
to be done by the Trustee or the Issuer in reliance thereon, whether
or not notation of such action is made upon such Bond.
SECTION 15.02. LIMITATION OF RIGHTS. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from
this Indenture or the Bonds is intended or shall be construed to give to any
Person other than the parties hereto, the Lessee and the owners of the Bonds,
any legal or equitable right, remedy or claim under or in respect to this
Indenture or any covenants, agreements, conditions and provisions herein
contained; this Indenture and all of the covenants, agreements, conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto, the Lessee and the owners of the Bonds as herein
provided.
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SECTION 15.03. ISSUER'S OBLIGATIONS LIMITED. No recourse under or upon any
obligation or agreement contained in this Indenture or in any Bond or under any
judgment obtained against the Issuer, or by the enforcement of any assessment or
by any legal or equitable proceeding by virtue of any constitution or statute or
otherwise or under any circumstances, under or independent of this Indenture,
shall be had against the Issuer.
Anything in this Indenture to the contrary notwithstanding, it is
expressly understood and agreed by the parties hereto that (a) the Issuer may
rely conclusively on the truth and accuracy of any certificate, opinion, notice
or other instrument furnished to the Issuer by the Trustee or the Lessee as to
the existence of any fact or state of affairs required hereunder to be noticed
by the Issuer; (b) the Issuer shall not be under any obligation hereunder to
perform any record-keeping or to provide any legal services, it being understood
that such services shall be performed either by the Trustee or the Lessee; and
(c) none of the provisions of this Indenture shall require the Issuer to expend
or risk its own funds or to otherwise incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder, unless it shall first have been adequately indemnified to its
satisfaction against the cost, expenses and liability which may be incurred
thereby.
Notwithstanding anything herein contained to the contrary, any
obligation which the Issuer may incur under this Indenture or under any
instrument executed in connection herewith which shall entail the expenditure of
money shall not be a general obligation of the Issuer by shall be a limited
obligation payable solely from the Trust Estate.
SECTION 15.04. IMMUNITY OF DIRECTORS, OFFICERS AND EMPLOYEES OF ISSUER. No
recourse shall be had for the enforcement of any obligation, promise or
agreement of the Issuer contained in the Lease Agreement, the Security Deed,
this Indenture or in any Bond issued hereunder for any claim based thereon or
otherwise in respect thereof, against any director, officer or employee, as
such, in his individual capacity, past, present or future, of the Issuer or of
any successor corporation, either directly or through the Issuer or any
successor corporation, whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assignment or penalty or
otherwise; it being expressly agreed and understood that the Bonds, the Lease
Agreement, the Security Deed and this Indenture are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any director, officer or employee as such, past, present or future,
of the Issuer or of any successor corporation, either directly or through the
Issuer or any successor corporation, under or by reason of any of the
obligations, promises or agreements entered into between the Issuer and the
Lessee whether contained in the Lease Agreement or the Security Deed or to be
implied therefrom as being supplemental hereto or thereto, and that all personal
liability of the character against every such director, officer and employee is,
by the execution of the Lease Agreement, the Security Deed and this Indenture,
and as a condition of, and as part of the consideration for, the execution of
the Lease Agreement, the Security Deed and this Indenture, expressly waived and
released.
SECTION 15.05. SEVERABILITY. If any provision of this Indenture
shall be held or deemed to be or shall, in fact, be inoperative or
unenforceable as applied in any particular case in any jurisdiction or
jurisdictions or in all jurisdictions, or in all cases because it
conflicts with any other provision or provisions hereof or any
constitution or statute or rule of public policy, or for any other
reason, such circumstances shall not have the effect of rendering the
provision in
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question inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision or provisions herein contained invalid,
inoperative, or unenforceable to any extent whatever.
SECTION 15.06. NOTICES. It shall be sufficient service of any notice,
request, complaint, demand or other paper if the same shall be duly mailed by
first class mail or by delivery to physical address, return receipt requested,
postage prepaid, addressed as follows or by facsimile with receipt confirmed:
If to the Issuer: Development Authority of Heard County
c/o Glover & Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000-0000
Attention: A. Xxxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Lessee: Tenaska Georgia Partners, L.P.
c/o Tenaska, Inc.
0000 X. 000xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx,
Vice President of
Finance and Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copies to: Xxxxxx, Xxxxxx & Xxxxxxx
675 Commercial Federal Tower
0000 X. 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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and Long, Xxxxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Trustee: The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
A duplicate copy of each notice, certificate or other communication
given hereunder by either the Issuer, the Lessee or the Trustee shall also be
given to each of the others. The Issuer, the Lessee and the Trustee may, by
notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
SECTION 15.07. TRUSTEE AS PAYING AGENT AND BOND REGISTRAR. The Trustee is
hereby designated and agrees to act as paying agent and Bond Registrar for and
in respect of the Bonds.
SECTION 15.08. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In any case
where the date of maturity of principal of or interest on the Bonds or the date
fixed for prepayment of any Bonds shall be, in the city of payment, a Saturday,
Sunday or a legal holiday or a day on which banking institutions are authorized
by law to close, then payment of principal or interest need not be made on such
date in such city but may be made on the next succeeding business day not a
Saturday, Sunday, legal holiday or day upon which banking institutions are
authorized by law to close with the same force and effect as if made on the date
of maturity or the date fixed for prepayment, and no interest shall accrue for
the period after such date.
SECTION 15.09. COUNTERPARTS. This Indenture may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 15.10. LAW GOVERNING INDENTURE. The effect and meaning of
this Indenture and the rights of all parties hereunder shall be governed
by, and construed according to, the laws of the State of Georgia, except
that the duties, responsibilities, obligations and powers of the Trustee
hereunder shall be governed by and construed according to the laws of
the State of New York, but it is the intention of the Issuer that the
situs of the trust created by this Indenture be in the state in which is
located the Principal Office of the Trustee from time to time acting
under this Indenture. The word "Trustee" as used in the preceding
sentence shall not be deemed to include any additional individual or
institution appointed as a separate or Co-Trustee
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pursuant to Section 12.13 of this Indenture. It is the further intention of the
Issuer that the Trustee administer said trust in the state in which is located,
from time to time, the situs of said trust.
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IN WITNESS WHEREOF, the Issuer has caused these presents to be signed
in its name and behalf by its Chairman and its corporate seal to be hereunto
affixed and attested by its Secretary, and to evidence its acceptance of the
trusts hereby created the Trustee has caused these presents to be signed in its
name and behalf and its official seal to be hereunto affixed and attested by its
duly authorized officers, all as of the date first above written.
(CORPORATE SEAL) DEVELOPMENT AUTHORITY OF
HEARD COUNTY
By: /S/_______________________
Chairman
Attest:
/S/_________________________
Secretary
As to the Issuer, signed and sealed in the presence of:
/S/__________________________
Unofficial Witness
/S/__________________________
Notary Public
My commission expires:
(NOTARIAL SEAL)
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(CORPORATE SEAL) THE CHASE MANHATTAN BANK
as Trustee
By: /S/_______________________
Xxxxxxx X. Xxxxxxx
Assistant Vice President
As to the Trustee, signed and sealed in the presence of:
/S/__________________________
Unofficial Witness
/S/__________________________
Notary Public
My commission expires:
(NOTARIAL SEAL)
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EXHIBIT A
(FORM OF SERIES 0000 XXXX)
XXXXXX XXXXXX XX XXXXXXX
XXXXX XX XXXXXXX
DEVELOPMENT AUTHORITY OF HEARD COUNTY
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(TENASKA GEORGIA PARTNERS, L.P. PROJECT)
SERIES 1999
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND,
EXCEPT FOR THE PLEDGE HEREOF BY THE INITIAL PURCHASER TO THE COLLATERAL AGENT AS
DESCRIBED HEREIN, MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED NOR MAY THE EXTENT OF ITS REGISTRATION BE REDUCED, WITHOUT OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE, THE ISSUER AND THE LESSEE REFERRED TO IN
THIS BOND TO THE EFFECT THAT SUCH TRANSFER OR CHANGE IN THE EXTENT OF
REGISTRATION WILL NOT VIOLATE APPLICABLE SECURITIES LAWS.
No. R-1 $275,000,000
FOR VALUE RECEIVED, the Development Authority of Heard County (the
"Issuer"), an instrumentality of Heard County, Georgia, and a public corporation
created and existing under the laws of the State of Georgia, hereby promises to
pay to Tenaska Georgia Partners, L.P., or registered assigns (the "Initial
Purchaser"), solely from the fund hereinafter described and from no other
source, the principal sum of
TWO HUNDRED SEVENTY-FIVE MILLION DOLLARS
such amount to be paid on February 1 and August 1 of the years and in the
amounts set forth on EXHIBIT "A" attached hereto, with the final payment of such
principal to be made on February 1, 2030, and to pay to the registered owner
hereof solely from said special fund, interest hereon at the rate of nine and
one-half percent (9 1/2%) per annum (calculated on the basis of a 30-day month,
360-day year), payable on February 1 and August 1 of each year (each such date
an "Interest Payment Date") until the principal hereof is paid, from the last
Interest Payment Date to which interest has been paid or provided for, unless:
(1) the date of authentication of this Bond is an Interest Payment Date to which
interest has been paid or provided for, then from the date of authentication
hereof, or (2) such authentication date shall be after any Record Date
(hereinafter defined) and before the next succeeding Interest Payment Date in
which case interest shall be paid from the next succeeding Interest Payment
Date. Interest due on this Bond on any Interest Payment Date shall be paid to
the registered owner hereof as shown on the registration books
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kept by the Registrar on the 15th day (whether or not a business day) of the
month immediately preceding such Interest Payment Date (each such date a "Record
Date"). The principal of and the interest on this Bond shall be payable in
lawful money of the United States of America by check mailed to the registered
owner hereof at the orders shown on the Bond Register or to the order of any
subsequent registered owner hereof on the applicable Record Date at the address
shown on the Bond Register, unless there shall be in effect, as provided in the
hereinafter mentioned Indenture, a home office payment agreement satisfactory to
the Trustee. Payment of the final installment of principal on this Bond shall be
made upon surrender of this Bond to The Chase Manhattan Bank, at is principal
corporate trust office in New York, New York or at the principal office of its
success or in trust (said Trustee and any successor trustee being hereinafter
called the "Trustee") under the Indenture of Trust (the "Indenture") between the
Issuer and the Trustee. Such payment shall be made to the person in whose name
this Bond is registered on the Bond Register with respect to payment of
principal, on the date such principal is due and with respect to the payment of
interest.
This Bond is a fully registered bond comprising one of a duly
authorized series in the aggregate principal amount of $275,000,000 (the
"Bonds"), of like tenor except as to numbers, issued under and secured by the
Indenture and an authorizing resolution of the Issuer adopted on October 5,
1999, as supplemented by a resolution of the Issuer adopted November 4, 1999,
for the purpose of financing the acquisition of certain real estate (the "Leased
Land"), the acquisition, construction and installation of certain buildings and
structures thereon (the "Building") and the acquisition, construction and
installation of new machinery and equipment and related real and personal
property therein (the "Leased Equipment") (collectively, the "Project") for
lease to Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"Lessee") pursuant to a Lease Agreement, dated as of November 1, 1999 (the
"Lease Agreement") between the Issuer and the Lessee.
This Bond will be pledged by the Initial Purchaser to The Chase
Manhattan Bank, as collateral agent (the "Collateral Agent"), pursuant to the
terms of that certain Partnership Assignment and Security Agreement, dated as of
November 1, 1999, among the Purchaser, the Senior Parties listed therein and the
Collateral Agent, in order to secure certain obligations of the Initial
Purchaser to the Senior Parties with respect to the Project.
This Bond and the interest hereon shall not be deemed to constitute a
debt or a general obligation or a pledge of the faith and credit of the State of
Georgia or of Heard County, and does not directly, indirectly or contingently
obligate said State or County to levy or to pledge any form of taxation whatever
for the payment of such principal and interest. This Bond is payable solely from
the rental payments and other payments received under the Lease Agreement
(hereinafter described) together with all other rents, revenues and receipts
arising out of or in connection with the Issuer's ownership of the Project
(except for certain indemnification rights provided therein) and the Issuer is
obligated to pay the principal of and the interest on this Bond only from the
fund entitled "Development Authority of Heard County Revenue Bond Fund - Tenaska
Georgia Partners, L.P. Project, Series 1999 (the "Bond Fund"), created in the
Indenture. No recourse shall be had for the payment of the principal of and the
interest on this Bond against any officer or member of the Issuer.
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This Bond is issued and the Indenture was authorized, executed and
delivered by the Issuer under and pursuant to the Constitution and laws of the
State of Georgia, including particularly, as amended, and the aforesaid
resolution of the Issuer. Pursuant to the terms of the Lease Agreement, the
Lessee must pay to the Issuer rental payments which are pledged to, and will be
fully sufficient to provide for, the payment of the principal of and the
interest on the Bonds as the same become due. In addition, the Issuer conveyed
that portion of the Project consisting of real property and granted a security
interest in that portion of the Project consisting of personal property and has
assigned all leases and rents therefrom to the Trustee pursuant to the terms of
a Deed to Secure Debt, Security Agreement and Assignment of Rents and Leases,
dated as of November 1, 1999. As additional security for the payment of the
Bonds, the Lessee will enter into a Guaranty Agreement with the Trustee, dated
as of November 1, 1999, under the terms of which the Lessee, as guarantor, will
unconditionally guarantee to the Trustee, for the benefit of the owners of the
Bonds, the payment of the principal of and interest on the Bonds as the same
become due.
Pursuant to the Indenture, the Issuer may from time to time after the
issuance of all of the Bonds of this series which are to be issued have been
issued, sell and issue additional parity bonds for the purposes and subject to
the terms and conditions contained in the Indenture. Such additional parity
bonds will rank on a parity with and be equally secured with the Bonds of this
series. Reference is hereby made to Article IV of the Indenture for a more
complete description of the terms under which such additional parity bonds may
be issued by the Issuer.
The Issuer has agreed that it will use its best efforts to keep the
Project continuously leased and will prescribe and collect rental payments
therefor sufficient to pay when due the principal of and the interest on the
Bonds. Reference to the Indenture is hereby made for a description of the
aforesaid Bond Fund which is charged with, and pledged to, the payment of the
principal of and the interest on the Bonds, the nature and extent of the
security, the rights, duties and obligations of the Issuer and the Trustee, the
rights of the owners of the Bonds, the terms and conditions under and upon the
occurrence of which the Indenture and the Lease Agreement may be modified, the
terms and conditions under which additional parity bonds may be issued and the
terms and conditions under and upon the occurrence of which the lien of the
Indenture may be defeased as to this Bond prior to the maturity or prepayment
date hereof, to all of the provisions of which the owner hereof, by the
acceptance of this Bond, assents.
The Bonds of this series are subject to redemption prior to maturity at
any time in whole or in part, at a redemption price equal to the principal
amount to be redeemed plus accrued interest thereon to the date of redemption,
at the option of the Lessee, such option to be exercised by written notice
delivered to the Issuer and the Trustee at least 10 days prior to the date of
redemption.
When Bonds are called for redemption as aforesaid, notice thereof
identifying the Bonds to be redeemed shall be given by mailing a copy of the
redemption notice by first class mail, postage prepaid, not less than 10 nor
more than 60 days prior to the redemption date to the registered owner of each
such Bond to be redeemed at the address shown on the Bond Register. Any notice
mailed as provided above shall be conclusively presumed to have been duly given,
whether or not the owner receives such notice. Failure to give any notice of
redemption, or any
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defect therein, shall not affect the validity of any proceedings for the
redemption of any Bond as to which notice was given as provided in the
Indenture.
Upon the giving of such notice, the Bonds or portions thereof so called
for redemption shall become and be due and payable at the applicable redemption
price and on the date specified for redemption in such notice. On the date
designated for redemption, notice having been given, moneys for payment of the
redemption price being on deposit with the Trustee or any paying agents and any
conditions to such redemption having been satisfied, the Bonds or portions
thereof shall cease to be entitled to any benefit or security under the
Indenture; and the registered owners thereof shall have no rights in respect of
such Bonds or such portions thereof so called for redemption except to receive
payment of the redemption price therefor and accrued interest thereon to the
redemption date from the moneys deposited with the Trustee or any paying agent
as provided in this paragraph.
Less than the entire principal amount of any Bond in a denomination in
excess of $100,000 may be redeemed and in such case, upon the surrender of such
Bond, there shall be issued to the registered owner thereof, without charge
therefor, for the unredeemed balance of the principal amount of such Bond, at
the option of such registered owner, Bonds of the same stated maturity and
interest rate and in any of the authorized denominations, as more fully set
forth in the Indenture.
This Bond is transferable by the registered owner hereof in person or
by his attorney duly authorized in writing at the principal office of the
Trustee, but only in the manner, subject to the conditions and limitations and
upon payment of the charges provided in the Indenture, and upon surrender and
cancellation of this Bond. Upon such transfer, a new fully registered Bond or
fully registered Bonds in the same aggregate principal amount and of any
authorized denomination or denominations shall be issued to the transferee or
transferees in exchange therefor.
The owner of this Bond shall have the right to enforce the payment of
the principal hereof and the interest hereon at or after the maturity hereof,
and the owner of this Bond shall have the right to enforce the provisions of the
Indenture and to institute action to enforce the covenants therein, and to take
any action with respect to any Event of Default under the Indenture, and to
institute, appear in or defend any suit or other proceedings with respect
thereto, as provided in the Indenture. In certain events, on the conditions, in
the manner and with the effect set forth in the Indenture, the principal of all
the Bonds issued under the Indenture and then outstanding may become or may be
declared due and payable before the stated maturity thereof, together with the
interest accrued thereon. Modifications or alterations of the Indenture, or of
any supplements thereto, may be made only to the extent and in the circumstances
permitted by the Indenture.
This Bond is issued with the intent that the laws of the State of
Georgia shall govern its construction.
It is hereby certified and recited that all acts, conditions and things
required by the Constitution and laws of the State of Georgia to happen, exist
and be performed precedent to and in the issuance of this Bond, the execution of
the Indenture and the adoption of the aforesaid resolution by the Issuer, have
happened, exist and have been performed. The issuance of this
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Bond and the series of which it forms a part, together with all other
obligations of the Issuer, does not exceed or violate any constitutional or
statutory limitation.
This Bond shall not be entitled to any benefit under the Indenture nor
shall it become valid or obligatory for any purpose until it shall have been
authenticated by execution by the Trustee of the certificate hereon endorsed.
IN WITNESS WHEREOF, the Development Authority of Heard County has
caused this Bond to be executed in its name by the signature of its Chairman,
and its corporate seal to be hereunto affixed and attested by the signature of
its Secretary, all as of the ____ day of November, 1999.
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DEVELOPMENT AUTHORITY OF HEARD
COUNTY
By: (Form)
-------------------------------
Chairman
ATTEST
(Form)
---------------------------
Secretary
(SEAL)
* * * * *
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EXHIBIT A
SCHEDULE OF MATURITIES
MATURITY DATE PRINCIPAL MATURITY DATE PRINCIPAL
------------- --------- ------------- ---------
February 1, 2006 $ 344,000 February 1, 2018 5,844,000
August 1, 2006 344,000 August 1, 2018 5,844,000
February 1, 2007 344,000 February 1, 2019 6,532,000
August 1, 2007 344,000 August 1, 2019 6,532,000
February 1, 2008 688,000 February 1, 2020 6,875,000
August 1, 2008 688,000 August 1, 2020 6,875,000
February 1, 2009 1,032,000 February 1, 2021 7,219,000
August 1, 2009 1,032,000 August 1, 2021 7,219,000
February 1, 2010 1,375,000 February 1, 2022 7,563,000
August 1, 2010 1,375,000 August 1, 2022 7,563,000
February 1, 2011 1,719,000 February 1, 2023 8,250,000
August 1, 2011 1,719,000 August 1, 2023 8,250,000
February 1, 2012 2,407,000 February 1, 2024 8,594,000
August 1, 2012 2,407,000 August 1, 2024 8,594,000
February 1, 2013 3,094,000 February 1, 2025 8,938,000
August 1, 2013 3,094,000 August 1, 2025 8,938,000
February 1, 2014 3,438,000 February 1, 2026 9,282,000
August 1, 2014 3,438,000 August 1, 2026 9,282,000
February 1, 2015 4,125,000 February 1, 2027 9,969,000
August 1, 2015 4,125,000 August 1, 2027 9,969,000
February 1, 2016 4,469,000 February 1, 2028 11,688,000
August 1, 2016 4,469,000 August 1, 2028 11,688,000
February 1, 2017 5,157,000 February 1, 2029 12,375,000
August 1, 2017 5,157,000 August 1, 2029 12,375,000
February 1, 2030 12,358,000
====================
Total: $275,000,000
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TRUSTEE'S AUTHENTICATION CERTIFICATE
Date of authentication: ____________
The above Bond is one of the fully registered Bonds described in the
above mentioned Indenture of Trust, and is hereby authenticated on its dated
date as specified above.
--------------------------------------,
as Trustee
By:________________________________
* * * * *
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VALIDATION CERTIFICATE
STATE OF GEORGIA
COUNTY OF HEARD
The undersigned Clerk of the Superior Court of Heard County, Georgia,
HEREBY CERTIFIES that the within Bond was confirmed and validated by judgment of
the Superior Court of Heard County, Georgia, rendered on the 25th day of
October, 1999, that no intervention or objection was filed thereto and that no
appeal has been taken therefrom.
WITNESS the manual or a duly authorized reproduced facsimile of may
signature and the reproduced facsimile seal of said court.
(SEAL) ________________________
Clerk, Superior Court,
Heard County, Georgia
* * * * *
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(Form for Transfer)
COMPLETE AND SIGN THIS FORM FOR
REGISTRATION OF TRANSFER
For value received ________________________ hereby sells,
assigns and transfers unto ________________________ this Bond and hereby
irrevocably constitutes and appoints ______________________ Attorney to register
such transfer on the books of registration in the office of the Registrar with
full power of substitution in the premises.
Dated:_____________________ ____________________________________
NOTE: The signature on this assignment
Signature Guaranteed by: must correspond with the name
as written on the face of this Bond in
every particular, without alteration,
enlargement or any change whatsoever.
---------------------------- ------------------------------
Bank, Trust Company or Please insert social security
Member Firm of New York number or other identifying
Stock Exchange, Inc. number of assignee
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MANNER OF TRANSFER FORM
/ / Beneficiary / / Transfer outside the United
States in compliance with Rule 904
of the Securities Act.
/ / Transfer inside the United States to / / Transfer inside the United States
a Qualified Institutional Buyer in in compliance with Rule 144
compliance with Rule 144A under under the Securities Act.
the Securities Act.
[Name of Holder]
------------------------------------
Dated: _______________, ______ *
*To be dated the date of presentation or surrender.
[END OF FORM OF BOND]
TRUSTINDENTURE
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