Exhibit 4.14
THIS INSTRUMENT PREPARED BY
RICHARD W. GREGORY, ESQUIRE
LECLAIR RYAN, A PROFESSIONAL CORPORATION
4201 DOMINION BOULEVARD, ST. 200
GLEN ALLEN, VIRGINIA 23060
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A PUBLIC
UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY
PROVISIONS
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OLD DOMINION ELECTRIC COOPERATIVE,
GRANTOR
TO
SUNTRUST BANK
(Successor by Merger to Crestar Bank),
TRUSTEE
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THIRTEENTH SUPPLEMENTAL INDENTURE
Dated as of November 1, 2002
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Supplemental to the Indenture of Mortgage and Deed of Trust
Dated as of May 1, 1992
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A Mortgage of Both Real and Personal Property
THIS INSTRUMENT IS EXEMPT FROM RECORDATION TAX PURSUANT TO
VIRGINIA CODE SECTION 58.1-803.D. RECORDATION TAX HAS BEEN PAID IN
THE OFFICE OF THE CLERK OF THE CIRCUIT COURT FOR HALIFAX COUNTY,
VIRGINIA ON A SECOND SUPPLEMENTAL INDENTURE RECORDED IN
DEED BOOK 588, PAGE 1
THIRTEENTH SUPPLEMENTAL INDENTURE
THIS THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of November
1, 2002 (the "Thirteenth Supplemental Indenture"), between Old Dominion
Electric Cooperative, a Virginia utility aggregation cooperative (the
"Company"), whose mailing address and address of its chief executive
office is Innsbrook Corporate Center, 4201 Dominion Boulevard, Glen
Allen, Virginia 23060, and SunTrust Bank, a Georgia banking corporation
and successor by merger to Crestar Bank, as trustee (the "Trustee"),
having a corporate trust office at 919 East Main Street, 10th Floor,
Corporate Trust Administration, Richmond, Virginia 23219.
WHEREAS, the Company has heretofore executed and delivered an
Indenture of Mortgage and Deed of Trust, dated as of May 1, 1992 (the
"Original Indenture"), to secure, as provided therein, Bonds, to be
issued in one or more series as provided in the Original Indenture, as
supplemented, modified or amended (the Original Indenture as so
supplemented, modified or amended and in effect from time to time, the
"Indenture");
WHEREAS, the Original Indenture was recorded among the land
records in the counties of Halifax, Louisa, Spotsylvania and Orange,
Virginia, and a UCC Form 1 concerning the Original Indenture was
recorded among the financing statement records at the Virginia State
Corporation Commission and the Counties of Henrico, Halifax, Louisa,
Spotsylvania and Orange, Virginia;
WHEREAS, the Company has heretofore executed and delivered a
First Supplemental Indenture, dated as of August 1, 1992 (hereinafter
the "First Supplemental Indenture"), its Second Supplemental Indenture,
dated as of December 1, 1992 (hereinafter called the "Second
Supplemental Indenture"), its Third Supplemental Indenture, dated as of
May 1, 1993 (hereinafter called the "Third Supplemental Indenture"),
its Fourth Supplemental Indenture, dated as of December 15, 1994
(hereinafter called the "Fourth Supplemental Indenture"), its Fifth
Supplemental Indenture, dated as of February 29, 1996 (hereinafter
called the "Fifth Supplemental Indenture"), its Sixth Supplemental
Indenture, dated as of November 28, 1997 (hereinafter called the "Sixth
Supplemental Indenture"), its Seventh Supplemental Indenture, dated as
of November 1, 1998 (hereinafter called the "Seventh Supplemental
Indenture"), its Eighth Supplemental Indenture, dated as of November
30, 1998 (hereinafter called the "Eighth Supplemental Indenture"), its
Ninth Supplemental Indenture, dated as of November 1, 1999 (hereinafter
called the "Ninth Supplemental Indenture"), its Tenth Supplemental
Indenture, dated as of November 1, 2000 (hereinafter called the "Tenth
Supplemental Indenture"), its Eleventh Supplemental Indenture, dated as
of September 1, 2001 (hereinafter called the "Eleventh Supplemental
Indenture") and its Twelfth Supplemental Indenture, dated as of
November 1, 2001 (hereinafter called the "Twelfth Supplemental
Indenture"), supplementing the Original Indenture, each of which, with
the exception of the Fourth Supplemental Indenture, provided for the
creation of a new series of Bonds and, some cases, subjected, or
intended to subject, to the lien of the Indenture certain property
described therein;
WHEREAS, each of the above-referenced supplemental indentures
to the Original Indenture were recorded among the land records for the
counties of Halifax, Louisa, Spotsylvania and Orange, Virginia and
among the financing statement records at the Virginia State Corporation
Commission and the Counties of Henrico, Halifax, Louisa, Spotsylvania
and Orange, Virginia, which (except for the County of Henrico) are all
of the recording offices in which this Thirteenth Supplemental
Indenture will be recorded;
WHEREAS, pursuant to the Original Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth
Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth
Supplemental Indenture, the Ninth Supplemental Indenture, the Tenth
Supplemental Indenture, the Eleventh Supplemental Indenture and the
Twelfth Supplemental Indenture there have been executed, authenticated,
delivered and issued and there are now outstanding First Mortgage
Bonds.
WHEREAS, in connection with acquisition, equipping and
construction of a two unit coal-fired electric generating facility in
Halifax County, Virginia in which the Company has an undivided 50%
interest (the "Project"), the Company installed solid waste disposal
and sewage facilities (the "Facilities"). Pursuant to a loan agreement
dated as of December 1, 1992 (as supplemented and amended the "Initial
Loan Agreement"), between the Company and the Industrial Development
Authority of Halifax, County, Virginia (the "Authority"), the Authority
financed the construction of the Facilities by issuing its Exempt
Facility Revenue Bonds (Old Dominion Electric Cooperative Project)
Series 1992, Exempt Facility Refunding Revenue Bonds (Old Dominion
Electric Cooperative Project) Series 1997, Exempt Facility Refunding
Revenue Bonds (Old Dominion Electric Cooperative Project) Series 1998,
Exempt Facility Refunding Revenue Bonds (Old Dominion Electric
Cooperative Project) Series 1999, Exempt Facility Refunding Revenue
Bonds (Old Dominion Electric Cooperative Project) Series 2000, and
Exempt Facility Refunding Revenue Bonds (Old Dominion Electric
Cooperative Project) Series 2001 (collectively, the "Prior Tax-Exempt
Bonds"). The Company's obligation to repay the loan from the Authority
was evidenced by its First Mortgage Bonds, 1992 Series C, First
Mortgage Bonds, 1997 Series A, First Mortgage Bonds, 1998 Series A,
First Mortgage Bonds, 1999 Series A, First Mortgage Bonds, 2000 Series
A and 2001 Series B Bonds (collectively, the "Prior Company Bonds");
WHEREAS, pursuant to a loan agreement dated as of November 1,
2002 (the "Loan Agreement"), between the Company the Authority, the
Authority proposes to refund all of the Authority's outstanding Prior
Tax-Exempt Bonds on December 1, 2002. The Prior Tax-Exempt Bonds will
be refunded by the Authority (concurrently with the defeasance of the
Prior Tax-Exempt Bonds) issuing its Exempt Facility Revenue Bonds (Old
Dominion Electric Cooperative Project) Series 2002 (the "Series 2002
Tax-Exempt Bonds"). Concurrently with the retirement of the Prior
Company Bonds, the Company's obligation to repay the new loan from the
Authority shall be evidenced by a new series of Bonds to be designated
2002 Series A Bonds (the "2002 Series A Bonds");
WHEREAS, the Board of Directors of the Company has authorized
the establishment and issuance of the 2002 Series A Bonds, and the
Company has complied or will comply with all provisions required to
issue Additional Bonds provided for in the Original Indenture;
WHEREAS, the Company desires to execute and deliver this
Thirteenth Supplemental Indenture, in accordance with the provisions of
the Indenture, for the purposes of providing for the creation of a new
series of Bonds, designating the series to be created and specifying
the form and provisions of the Bonds of the new series;
WHEREAS, Section 13.01 of the Indenture provides that, without
the consent of the Holders of any of the Bonds at the time Outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may
enter into a Supplemental Indenture for the purposes and subject to the
conditions set forth in such Section 13.01;
WHEREAS, the Company proposes to supplement and amend the
Indenture as provided herein in compliance with Section 13.01 thereof,
and
WHEREAS, all acts and proceedings required by law and by the
Articles of Incorporation and Bylaws of the Company necessary to secure
the payment of the principal and Redemption Price of and interest on
the 2002 Series A Bonds, to make the 2002 Series A Bonds to be issued
hereunder, when executed by the Company, authenticated and delivered by
the Trustee and duly issued, the valid, binding and legal obligations
of the Company, and to constitute that the Indenture is a valid and
binding mortgage for the security of all of the Bonds prior to the
Release Date, in accordance with its and their terms, have been done
and taken; and the execution and delivery of this Thirteenth
Supplemental Indenture has been in all respects duly authorized.
NOW, THEREFORE, THIS THIRTEENTH SUPPLEMENTAL INDENTURE
WITNESSETH, that, to secure the payment of the principal of (and
premium, if any) and interest on the Outstanding Secured Bonds until
the Release Date, to confirm the lien of the Indenture upon the Trust
Estate mentioned therein including all property purchased, constructed
or otherwise acquired by the Company since the date of execution of the
Original Indenture until the Release Date, to secure performance of the
covenants therein and herein contained, to declare the terms and
conditions on which the Outstanding Secured Bonds are secured, and in
consideration of the premises thereof and hereof, the Company by these
presents does grant, bargain, sell, alienate, remiss, release, convey,
assign, transfer, mortgage, hypothecate, pledge, set over and confirm
to the Trustee, in trust, all property, rights, privileges and
franchises (other than Excepted Property) of the Company of the
character described in the Granting Clauses of the Indenture, including
all such property, rights, privileges and franchises acquired since the
date of execution of the Original Indenture, including, without
limitation, all of those fee and leasehold interests in real property,
if any, which may hereafter be constructed or acquired by it, but
subject to all exceptions, reservations and matters of the character
therein referred to, and expressly excepting and excluding from the
lien and operation of
the Indenture all properties of the character specifically excepted by
paragraphs (A) through (K) of "Excepted Property" in the Indenture to
the extent contemplated thereby, and all property heretofore released
or otherwise disposed of pursuant to the provisions of the Indenture.
PROVIDED, HOWEVER, that (i) if, upon the occurrence of an
Event of Default, the Trustee, or any separate trustee or co-trustee
appointed under Section 10.14 of the Indenture or any receiver
appointed pursuant to statutory provision or order of court, shall have
entered into possession of all or substantially all of the Trust
Estate, all the Excepted Property described or referred to in
paragraphs (A) through (G), inclusive, of "Excepted Property" in the
Indenture then owned or thereafter acquired by the Company shall
immediately, and, in the case of any Excepted Property described or
referred to in paragraphs (H) through (J) inclusive, of "Excepted
Property" in the Indenture, upon demand of the Trustee or such other
trustee or receiver, become subject to the lien of the Indenture to the
extent permitted by law, and the Trustee or such other trustee or
receiver may, to the extent permitted by law, at the same time likewise
take possession thereof, and (ii) whenever all Events of Default shall
have been cured and the possession of all or substantially all of the
Trust Estate shall have been restored to the Company, such Excepted
Property shall again be excepted and excluded from the lien of the
Indenture to the extent and otherwise as hereinabove set forth and as
set forth in the Indenture.
The Company may, however, pursuant to Granting Clause Third of
the Indenture, subject any Excepted Property to the lien of the
Indenture, whereupon the same shall cease to be Excepted Property.
TO HAVE AND TO HOLD all said property, rights, privileges and
franchises of every kind and description, real, personal or mixed,
hereby and hereafter (by Supplemental Indenture or otherwise) granted,
bargained, sold, alienated, remised, released, conveyed, assigned,
transferred, mortgaged, hypothecated, pledged, set over or confirmed as
aforesaid, or intended, agreed or covenanted so to be, together with
all the appurtenances thereto appertaining unto the Trustee and its
successors and assigns forever.
SUBJECT, HOWEVER, to (i) Permitted Encumbrances (as defined in
Section 1.01 of the Indenture), (ii) to the extent permitted by Section
14.06 of the Indenture, as to property acquired since the date of
execution of the Original Indenture, (a) any duly recorded or perfected
prior mortgage or other lien that may exist thereon at the date of the
acquisition thereof by the Company, and (b) purchase money mortgages
created by the Company at the time of acquisition thereof, and (iii)
defects of title to and encumbrances on property described in Article
IV of the First Supplemental Indenture.
BUT IN TRUST, NEVERTHELESS, with power of sale, for the equal
and proportionate benefit and security of the Holders from time to time
of all the Outstanding
Secured Bonds without any priority of any such Bond over any other such
Bond and for the enforcement of the payment of such Bonds in accordance
with their terms.
UPON CONDITION that, until the happening of an Event of
Default and subject to the provisions of Article Six of the Indenture,
the Company shall be permitted to possess and use the Trust Estate,
except cash, securities and other personal property deposited, or
required to be deposited, with the Trustee and to explore for, mine,
extract and dispose of coal, ore, gas, oil and other minerals, to
harvest standing timber and to receive and use the rents, issues,
profits, revenues and other income, products and proceeds of the Trust
Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that all the Bonds
are to be authenticated and delivered and the Trust Estate is to be
held and applied by the Trustee, subject to the further covenants,
conditions and trusts set forth in the Indenture, and the Company does
hereby covenant and agree to and with the Trustee, for the equal and
proportionate benefit of all Holders of the Bonds as follows:
ARTICLE I
TERMS AND ISSUE OF THE 2002 SERIES A BONDS
Section 1.01. General. There shall be hereby established under
the Indenture, as further amended by this Thirteenth Supplemental
Indenture, a series of Bonds, known as and entitled "2002 Series A
Bonds." The aggregate principal amount of 2002 Series A Bonds which may
be authenticated and delivered and Outstanding is limited to SIXTY
MILLION TWO HUNDRED TEN THOUSAND AND NO/00 DOLLARS ($60,210,000.00).
The Trustee is hereby appointed as Authenticating Agent for the 2002
Series A Bonds.
The 2002 Series A Bonds shall be issuable in fully registered
form without coupons and in denominations of $5,000 and integral
multiples thereof. Each 2002 Series A Bond shall be dated the date of
its issuance and delivery. The 2002 Series A Bonds shall mature on the
dates and in the principal amounts, and shall bear interest, payable
semi-annually on June 1 and December 1 in each year, commencing June 1,
2003, at the respective rates per annum, as shown below:
Principal Interest
Maturity Date Amount Rate
----------------------- ----------------- ------------
June 1, 2028 $27,755,000.00 5.00%
June 1, 2028 $32,455,000.00 5.625%
Interest on the 2002 Series A Bonds shall be computed on the basis of a
360-day year of twelve 30-day months.
The 2002 Series A Bonds shall be issued to and registered in
the name of the Authority and subsequently will be pledged and assigned
by the Authority to SunTrust Bank, a Georgia banking corporation, as
trustee (the "Tax-Exempt Bond Trustee") pursuant to that certain
Indenture of Trust, dated as of November 1, 2002, between the Authority
and the Tax-Exempt Bond Trustee (as supplemented and amended, the
"Tax-Exempt Indenture") and will secure the obligations of the Company
under that certain Loan Agreement, dated as of November 1, 2002,
between the Authority and the Company (as supplemented and amended, the
"Loan Agreement").
The 2002 Series A Bonds shall be lettered "A" and numbered
from 1 consecutively upwards in order of maturity on original issuance
and order of issuance thereafter. The principal and Redemption Price
and interest on the 2002 Series A Bonds shall be payable in lawful
money of the United States of America to the registered owner of the
2002 Series A Bonds or its assignee in accordance with the provisions
of the Loan Agreement by wire transfer or other method acceptable to
such registered owner or its assignee in funds which will be
immediately available on the applicable principal and/or Interest
Payment Date or Redemption Date. Interest on the 2002 Series A Bonds
shall be payable without presentation of the 2002 Series A Bonds for
payment. Payment of the principal or Redemption Price of any 2002
Series A Bond shall be made by the Company to the Tax-Exempt Bond
Trustee upon presentation and surrender of such Bond to the Trustee.
The Regular Record Date referred to in Section 3.09 of the
Original Indenture for the payment of interest on the 2002 Series A
Bonds shall be the fifteenth day (whether or not a business day) of the
calendar month next preceding such Interest Payment Date.
Section 1.02 Redemption Dates and Prices. The 2002 Series A
Bonds may not be called for redemption by the Company at any time prior
to the Stated Maturity, except as provided below:
(A) Extraordinary Optional Redemption of 2002 Series A Bonds.
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(i) The 2002 Series A Bonds are subject to extraordinary
optional redemption by the Company in whole at any time at a Redemption
Price equal to 100% of the principal amount of such 2002 Series A
Bonds, together with accrued interest to the Redemption Date, upon the
happening of any of the following events:
(a) Damage or destruction of the Facilities by fire
or other casualty to such extent that, or loss of title to or use of
substantially all of the Facilities as a result of the exercise of the
power of eminent domain or failure of title which, in the opinion of
both the Company (expressed in a certificate of an Officer of the
Company) and an Engineer, both filed with the Trustee and the Tax-
Exempt Bond Trustee and, that (1) the Facilities cannot be reasonably
repaired, rebuilt or restored within a period of 12 months to their
condition immediately preceding such damage or destruction, or (2) the
Company is prevented from carrying on its normal operations at the
Facilities for a period of 12 months; or
(b) A change in the Constitution of Virginia or of
the United States of America or a legislative or administrative action
(whether local, state or Federal) or a final decree, judgment or order
of any court or administrative body (whether local, state or Federal)
contested by the Company in good faith which causes (1) the Loan
Agreement or the 2002 Series A Bonds to become void or unenforceable or
their performance in accordance with the intent and purpose of the
parties as expressed therein to be impossible or (2) unreasonable
burdens or excessive liabilities to be imposed on the Authority or the
Company.
(ii) The 2002 Series A Bonds are subject to extraordinary
optional redemption by the Company in part on any Interest Payment Date
at a Redemption Price equal to 100% of the principal amount of the 2002
Series A Bonds to be redeemed, together with accrued interest to the
Redemption Date in the event of (i) damage or destruction to any part
of the Facilities by fire or other casualty or (ii) loss of title to
any part of the Facilities as a result of the exercise of eminent
domain or failure of title, but only upon receipt by the Trustee and
the Tax-Exempt Bond Trustee of the following:
(a) A certificate of an Officer of the Company
stating that there has been either (x) damage or destruction of the
Facilities by fire or other casualty or (y) loss of title to any part
of the Facilities as a result of the exercise of eminent domain or
failure of title and that it is not in the best interest of the Company
to rebuild such portion of the Facilities; and
(b) An Opinion of Counsel stating that the use of the
condemnation award or insurance proceeds resulting from such casualty
or loss of title, for purposes other than (x) rebuilding, restoring or
repairing the Facilities, or (y) redeeming the Series 2002 Tax-Exempt
Bonds would cause the interest paid or payable on the Series 2002
Tax-Exempt Bonds (other than interest paid to any "substantial user" of
the Facilities or "related person" as those terms are defined in
Section 147(a) of the Internal Revenue Code of 1986, as amended (the
"Code")) to be includable in the gross income of a holder of Series
2002 Tax-Exempt Bonds for Federal income tax purposes under the Code
(or for Virginia state income tax purposes).
(iii) To exercise its option to redeem the 2002 Series A
Bonds, in whole under subsection (A)(i), above, or in part under
subsection (A)(ii), above, the Company shall comply with the provisions
of Article Seven of the Original Indenture, if applicable, and shall
within 120 days after the event permitting its exercise, file the
required documentation with the Trustee and the Tax-Exempt Bond Trustee
and specify a date not more than 60 days thereafter for making such
payments.
(B) Optional Redemption.
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(i) The 2002 Series A Bonds bearing interest at an annual
rate of 5.00% are subject to optional redemption by the Company on or
after June 1, 2013 in whole at any time or in part on any interest
payment date at par plus accrued interest to the redemption date.
(ii) The 2002 Series A Bonds bearing interest at an
annual rate of 5.625% are subject to optional redemption by the Company
on or after June 1, 2013, in whole at any time or in part on any
interest payment date, at the following redemption prices (expressed as
a percentage of the principal amount of the 2002 Series A Bonds to be
redeemed) plus interest accrued to the redemption date:
Redemption Period Price
----------------- -----
June 1, 2013 through and including May 30, 2014 101%
June 1, 2014 and thereafter 100%
(C) Mandatory Redemption of the 2002 Series A Bonds. The 2002
-----------------------------------------------
Series A Bonds are subject to mandatory redemption in whole as promptly
as possible, but no later than 180 days after the occurrence of any
Determination of Taxability, at a Redemption Price equal to 100% of the
principal amount of the 2002 Series A Bonds to be redeemed plus
interest accrued to the Redemption Date. For purposes of this
paragraph, "Determination of Taxability" shall mean (i) any enactment
or amendment of any applicable statute or regulation, or (ii) a final
decree or judgment of any federal court, a final determination by the
United States Internal Revenue Service or a final judgment or
determination by any court or agency of the Commonwealth of Virginia,
with the effect that interest paid or payable on the Series 2002
Tax-Exempt Bonds (other than interest paid to any "substantial user" of
the Facilities or "related person" as those terms are defined in
Section 147(a) of the Code) is or was includable in the gross income of
a Series 2002 Tax-Exempt Bondholder for Federal income tax purposes
under the Code (or for Virginia state income tax purposes). A
Determination of Taxability does not include any tax upon interest
payable on exempt facility bonds under Section 142 of the Code and
other statutes and regulations in effect on the date of issuance of the
Series 2002 Tax-Exempt Bonds and does not include any change in tax
rates. A Determination of Taxability will be deemed to have occurred on
the date on which the Tax-Exempt Bond Trustee is first notified in
writing of any such enactment, amendment, judgment, decree or
determination.
(D) Selection of 2002 Series A Bonds to be Redeemed. If less
-----------------------------------------------
than all of the 2002 Series A Bonds are called for redemption pursuant
to Section 1.02 (a) and Section 1.02 (b), the 2002 Tax-Exempt Bonds and
the corresponding 2002 Series A Bonds to be redeemed shall be selected
by lot, in such manner as the Tax-Exempt Bond Trustee, may determine,
each portion of $5,000 principal amount being counted as one 2002
Series A Bond for this purpose. If a portion of a 2002 Series A Bond
having a principal amount of
more than $5,000 shall be called for redemption, a new registered 2002
Series A Bond in principal amount equal to the unredeemed portion
thereof shall be issued to the registered owner upon the surrender
thereof.
(E) Notice of Redemption. If any 2002 Series A Bond is called
--------------------
for redemption, the Company has covenanted to cause notice of the call
for redemption to be given to each Holder of such 2002 Series A Bond to
be redeemed at such Holder's address as the same shall last appear upon
the Bond Register, by first class mail at least 35 and no more than 60
days prior to the Redemption Date.
Section 1.03 Form of 2002 Series A Bonds. The 2002 Series A
Bonds and the Trustee's authentication certificate to be executed on
the Bonds of said series shall be substantially in the form attached
hereto as Exhibit A, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Original Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the Officers executing
such Bonds, as evidenced by their execution of such Bond.
ARTICLE II
MISCELLANEOUS
Section 2.01. This Thirteenth Supplemental Indenture is
executed and shall be construed as an indenture supplemental and
amendatory to the Original Indenture, and shall form a part thereof,
and the Indenture, as hereby supplemented and modified, is hereby
confirmed. Except to the extent inconsistent with the express terms
hereof, all of the provisions, terms, covenants and conditions of the
Indenture shall be applicable to the 2002 Series A Bonds to the same
extent as if specifically set forth herein. All capitalized terms used
in this Thirteenth Supplemental Indenture shall be taken to have the
same meanings as in the Indenture, except in cases where the context
clearly indicates otherwise.
Section 2.02. All recitals in this Thirteenth Supplemental
Indenture are made by the Company only and not by the Trustee; and all
of the provisions contained in the Indenture, in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set
forth herein in full.
Section 2.03. Whenever in this Thirteenth Supplemental
Indenture any of the parties hereto is named or referred to, this
shall, subject to the provisions of Articles Ten and Twelve of the
Indenture, be deemed to include the successors and assigns of such
party, and all the covenants and agreements in this Thirteenth
Supplemental Indenture contained by or on behalf of the Company, or by
or on behalf of the Trustee shall, subject as aforesaid, bind and inure
to the respective benefits of the respective successors and assigns of
such parties, whether so expressed or not.
Section 2.04. Nothing in this Thirteenth Supplemental
Indenture, expressed or implied, is intended, or shall be construed, to
confer upon, or to give to, any person, firm or corporation, other than
the parties hereto and the Holders of the Outstanding Bonds, any right,
remedy or claim under or by reason of this Thirteenth Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Thirteenth Supplemental Indenture contained by or on
behalf of the Company shall be for the sole and exclusive benefit of
the parties hereto, and of the Holders of Outstanding Bonds.
Section 2.05. This Thirteenth Supplemental Indenture may be
executed in several counterparts, each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts, or
as many of them as the Company and the Trustee shall preserve
undestroyed, shall together constitute but one and the same instrument.
Section 2.06. Although this Thirteenth Supplemental Indenture
is dated for convenience and for the purpose of reference as of
November 1, 2002, the actual date or dates of execution by the Company
and by the Trustee are as indicated by their respective acknowledgments
hereto annexed.
Section 2.07. To the extent permitted by applicable law, this
Thirteenth Supplemental Indenture shall be deemed to be a Security
Agreement and Financing Statement whereby the Company grants to the
Trustee a security interest in all of the Trust Estate that is personal
property or fixtures under the Uniform Commercial Code, as adopted or
hereafter adopted in one or more of the states in which any part of the
properties of the Company are situated. The mailing address of the
Company, as debtor, is Innsbrook Corporate Center, 4201 Dominion
Boulevard, Glen Allen, Virginia 23060, and the mailing address of the
Trustee, as secured party, is SunTrust Bank, Attention: Corporate Trust
Administration, 919 East Main Street, 10th Floor, Richmond, Virginia
23219.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this
Thirteenth Supplemental Indenture to be duly executed as of the day and
year first above written.
Company: OLD DOMINION ELECTRIC
Innsbrook Corporate Center COOPERATIVE
4201 Dominion Boulevard
Glen Allen, Virginia 23060
By: /s/ Daniel M.Walker
-------------------
Name: Daniel M. Walker
Title: Senior Vice President
Trustee: SUNTRUST BANK, as Trustee
919 East Main Street
10/th/ Floor By: /s/ Jackie Shornak
Corporate Trust Administration ------------------
Richmond, Virginia 23219 Name: Jackie Shornak
Title: Asst. Vice President
ACKNOWLEDGMENT
COMMONWEALTH OF VIRGINIA )
)
COUNTY OF HENRICO )
The foregoing instrument was acknowledged before me this 5th
day of November, 2002, by Daniel M. Walker, the Senior Vice President
of Accounting and Finance of Old Dominion Electric Cooperative, a
Virginia utility aggregation cooperative.
/s/ Arlene Hines
------------------------------------
Notary Public
My Commission expires: 9/30/06
ACKNOWLEDGMENT
COMMONWEALTH OF VIRGINIA )
)
CITY OF RICHMOND )
The foregoing instrument was acknowledged before me this 31st
day of October, 2002, by Jackie Shornak, the Asst. Vice President of
SunTrust Bank, a Georgia banking corporation, on behalf of the Bank.
/s/ Donna M. Tilles
------------------------------------
Notary Public
My Commission expires: January 31, 2006
EXHIBIT A
FORM OF 2002 SERIES A BONDS
THIS 2002 SERIES A BOND, HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION
UNDER SUCH ACT OR IN RELIANCE UPON AN APPLICABLE EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
Old Dominion Electric Cooperative
2002 Series A Bonds
Due June 1, 2028
No. $ __________
Old Dominion Electric Cooperative, a Virginia utility
aggregation cooperative (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to THE
INDUSTRIAL DEVELOPMENT AUTHORITY OF HALIFAX COUNTY, VIRGINIA, or
registered assigns, the principal sum of ______________________________
Dollars on June 1, 2028 and to pay interest (computed on the basis of a
360-day year of twelve 30-day months) thereon from the date of this
Bond or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, payable on June 1, 2003, and on
each June 1 and December 1 of each year thereafter, at the rate of
________% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in
the Indenture (as defined herein), be paid to the Person in whose name
this Bond (or one or more Predecessor Bonds) is registered on the date
of business on the Regular Record Date for such interest, which shall
be the fifteenth day (whether or not a business day), of the calendar
month next proceeding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Bond (or one or more Predecessor
Bond) is registered at the close of business on a Special Record Date
for the payment of such defaulted interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Bonds of this series not
less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner not inconsistent with the
provisions of the Indenture and acceptable to the Holder hereof.
If any principal of or premium, if any, or interest on this
Bond is not paid when due (whether at maturity, upon acceleration or
call for redemption or
otherwise), then the overdue installments of principal and, to the
extent permitted by law, interest shall bear interest until paid at the
interest rate borne by this Bond.
The principal of and premium, if any, and interest on this
Bond shall be payable in lawful money of the United States of America
to the registered owner hereof in accordance with the provisions of the
Loan Agreement (as defined herein) by wire transfer or other method
acceptable to such registered owner in funds which will be immediately
available on the applicable principal and/or interest payment date or
redemption date. Interest on this Bond shall be payable without
presentation hereof. Payment of the principal and premium, if any, on
this Bond shall be made by the Company to the holder hereof upon
presentation and surrender of such Bond to SunTrust Bank (formerly
Crestar Bank), Richmond, Virginia, as trustee ("Trustee") under the
Indenture.
Reference is hereby made to the further provisions of this
Bond set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Bond shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Bond to be
duly executed.
Dated: _______________
Attest: OLD DOMINION ELECTRIC COOPERATIVE
______________________ By: SPECIMEN
---------------------
Name: ________________ Authorized Officer
Title: _________________
[Reverse of Bond]
This is one of the Bonds referred to in and secured by the
Indenture of Mortgage and Deed of Trust, dated as of May 1, 1992, by
and between Old Dominion Electric Cooperative and Crestar Bank, as
trustee, as the same has been and may be amended and effective from
time to time prior to the Release Date (the "Original Indenture"),
under which the undersigned now acts as Trustee. From and after the
Release Date (as defined in the Eleventh Supplemental Indenture to the
Original Indenture), this Bond shall constitute one of the unsecured
Obligations referred to in and entitled to the benefits of that Amended
and Restated Indenture, dated as of September 1, 2001, between Old
Dominion Electric Cooperative and SunTrust Bank, successor by merger to
Crestar Bank, as trustee (the "Restated Indenture"), which Restated
Indenture amends and supersedes
the Original Indenture in its entirety from and after the Release Date.
The Original Indenture, including all indentures supplemental thereto
and effective prior to the Release Date, contains a statement of the
description of the properties thereby mortgaged, pledged and assigned,
the nature and extent of the security and the respective rights,
limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Bonds and of the terms upon which
the Bonds are, and are to be, authenticated and delivered, in each case
prior to the Release Date. The Restated Indenture, including all
indentures supplemental thereto, contains a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Obligations and of the
terms upon which the Obligations are, and are to be, authenticated and
delivered from and after the Release Date. From and after the Release
Date, the term "Bond" as used in this instrument shall be construed to
mean "Obligation" as that term is used in the Restated Indenture and
all indentures supplemental thereto. The term "Indenture" as used
herein means the Original Indenture prior to the Release Date and the
Restated Indenture from and after the Release Date.
This Bond is one of the series (the "2002 Series A Bonds")
designated on the face hereof, limited in aggregate principal amount to
Sixty Million Two Hundred Ten Thousand Dollars ($60,210,000), issued
pursuant to the Thirteenth Supplemental Indenture, dated as of November
1, 2002 ("Thirteenth Supplemental Indenture"), between the Company and
the Trustee. This Bond is being issued to refund the Company's First
Mortgage Bonds, 1992 Series C, First Mortgage Bonds, 1997 Series A,
First Mortgage Bonds, 1998 Series A, First Mortgage Bonds, 1999 Series
A, First Mortgage Bonds, 2000 Series A, and 2001 Series B Bonds
(collectively, the "Prior Company Bonds"). The Prior Company Bonds were
issued by the Company to repay a loan ("Initial Loan") from the
Industrial Development Authority of Halifax County, Virginia
("Authority") made to the Company for the purpose of acquiring,
constructing and equipping certain solid waste and sewage disposal
facilities ("Facilities") for the Company pursuant to the Loan
Agreement, dated as of December 1, 1992, between the Company and the
Authority. The Initial Loan was funded from the proceeds of the
Authority's Exempt Facility Revenue Bonds (Old Dominion Electric
Cooperative Project) Series 1992, Exempt Facility Refunding Revenue
Bonds (Old Dominion Electric Cooperative Project) Series 1997, Exempt
Facility Refunding Revenue Bonds (Old Dominion Electric Cooperative
Project) Series 1998, Exempt Facility Refunding Revenue Bonds (Old
Dominion Electric Cooperative Project) Series 1999, Exempt Facility
Refunding Revenue Bonds (Old Dominion Electric Cooperative Project)
Series 2000, and Exempt Facility Refunding Revenue Bonds (Old Dominion
Electric Cooperative Project) Series 2001 (collectively, the "Prior
Tax-Exempt Bonds"). Pursuant to a Loan Agreement, dated as of November
1, 2002 (the "Loan Agreement"), between the Authority and the Company,
the Authority agreed to refund the Initial Loan and has issued its
Exempt Facility Refunding Revenue Bonds (Old Dominion Electric
Cooperative Project), Series 2002 ("Series 2002 Tax-Exempt Bonds") in
the aggregate principal amount of $60,210,000, under that certain
Indenture of Trust, dated as of November 1, 2002 ("Tax-Exempt
Indenture"), between the Authority and SunTrust Bank (the "Tax-Exempt
Bond Trustee"). The Prior Tax-Exempt Bonds will be refunded by the
Authority issuing the Series 2002 Tax-Exempt Bonds.
If at any time the amount held by the Tax-Exempt Bond Trustee
in the Bond Fund, as defined in the Tax-Exempt Indenture, should be
sufficient to pay at the times required the principal of, and premium,
if any, and interest on the Series 2002 Tax-Exempt Bonds then remaining
unpaid and to pay all fees and expenses of the Tax-Exempt Bond Trustee
accrued and to accrue through final payment of the Series 2002
Tax-Exempt Bonds, the Company shall not be obligated to make any
further payments hereunder, except to the extent losses may be incurred
in connection with investment of moneys in the Bond Fund.
The Authority, by the execution of the Tax-Exempt Indenture
and the assignment form at the foot of this Bond ("Assignment"), is
assigning this Bond and the payments thereon to the Tax-Exempt Trustee,
acting pursuant to the Tax-Exempt Indenture, as security for the Series
2002 Tax-Exempt Bonds. Payments of principal of, and premium, if any,
and interest on this Bond shall be made directly to the Tax-Exempt Bond
Trustee for the account of the Authority pursuant to such assignment
and applied only to the principal of, and premium, if any, and interest
on the Series 2002 Tax-Exempt Bonds. All obligations of the Company
hereunder shall terminate when all sums due and to become due pursuant
to the Tax-Exempt Indenture, this Bond, the Loan Agreement and the
Series 2002 Tax-Exempt Bonds have been paid or provided for in full.
This Bond may not be called for redemption by the Company at
any time prior to the Stated Maturity, except as provided below:
(A) Extraordinary Optional Redemption.
---------------------------------
(i) This Bond is subject to extraordinary optional
redemption by the Company in whole at any time at a Redemption Price
equal to 100% of its principal amount, together with accrued interest
to the Redemption Date, upon the happening of any of the following
events:
(a) Damage or destruction of the Facilities by fire
or other casualty to such extent that, or loss of title to or use of
substantially all of the Facilities as a result of the exercise of the
power of eminent domain or failure of title which, in the opinion of
both the Company (expressed in a certificate of an Officer of the
Company) and an Engineer, both filed with the Trustee and the
Tax-Exempt Bond Trustee and, that (1) the Facilities cannot be
reasonably repaired, rebuilt or restored within a period of 12 months
to their condition immediately preceding such damage or destruction, or
(2) the Company is prevented from carrying on its normal operations at
the Facilities for a period of 12 months; or
(b) A change in the Constitution of Virginia or of
the United States of America or a legislative or administrative action
(whether local, state or Federal) or a final decree, judgment or order
of any court or administrative body (whether local, state or Federal)
contested by the Company in good faith which causes (1) the Loan
Agreement or the 2002 Series A Bonds to become void or unenforceable or
their
performance in accordance with the intent and purpose of the parties as
expressed therein to be impossible or (2) unreasonable burdens or
excessive liabilities to be imposed on the Authority or the Company.
(ii) This Bond is subject to extraordinary optional
redemption by the Company in part on any Interest Payment Date at a
Redemption Price equal to 100% of its principal amount, together with
accrued interest to the Redemption Date in the event of (i) damage or
destruction to any part of the Facilities by fire or other casualty or
(ii) loss of title to any part of the Facilities as a result of the
exercise of eminent domain or failure of title, but only upon receipt
by the Trustee and the Tax-Exempt Bond Trustee of the following:
(a) A certificate of an Officer of the Company
stating that there has been either (x) damage or destruction of the
Facilities by fire or other casualty or (y) loss of title to any part
of the Facilities as a result of the exercise of eminent domain or
failure of title and that it is not in the best interest of the Company
to rebuild such portion of the Facilities; and
(b) An Opinion of Counsel stating that the use of the
condemnation award or insurance proceeds resulting from such casualty
or loss of title, for purposes other than (x) rebuilding, restoring or
repairing the Facilities, or (y) redeeming the Series 2002 Tax-Exempt
Bonds would cause the interest paid or payable on the Series 2002
Tax-Exempt Bonds (other than interest paid to any "substantial user" of
the Facilities or "related person" as those terms are defined in
Section 147(a) of the Internal Revenue Code of 1986, as amended (the
"Code")) to be includable in the gross income of a holder of Series
2002 Tax-Exempt Bonds for Federal income tax purposes under the Code
(or for Virginia state income tax purposes).
(iii) To exercise its option to redeem this Bond, in
whole under subsection (A)(i), above, or in part under subsection
(A)(ii), above, the Company shall comply with the provisions of Article
Seven of the Original Indenture, if applicable, and shall within 120
days after the event permitting its exercise, file the required
documentation with the Trustee and the Tax-Exempt Bond Trustee and
specify a date not more than 60 days thereafter for making such
payments.
(B) Optional Redemption.
-------------------
This Bond is subject to optional redemption by the Company on
or after June 1, 2013 in whole at any time or in part on any Interest
Payment Date at par plus accrued interest to the Redemption Date. or
This Bond is subject to optional redemption by the Company on
or after June 1, 2013, in whole at any time or in part on any Interest
Payment Date, at the following redemption prices (expressed as a
percentage of its principal amount) plus interest accrued to the
Redemption Date:
Redemption Period Price
----------------- -----
June 1, 2013 through and including May 30, 2014 101%
June 1, 2014 and thereafter 100%
(C) Mandatory Redemption of the 2002 Series A Bonds. This Bond
is subject to mandatory redemption in whole as promptly as possible,
but no later than 180 days after the occurrence of any Determination of
Taxability, at a Redemption Price equal to 100% of its principal amount
plus interest accrued to the Redemption Date. For purposes of this
paragraph, "Determination of Taxability" shall mean (i) any enactment
or amendment of any applicable statute or regulation, or (ii) a final
decree or judgment of any federal court, a final determination by the
United States Internal Revenue Service or a final judgment or
determination by any court or agency of the Commonwealth of Virginia,
with the effect that interest paid or payable on the Series 2002
Tax-Exempt Bonds (other than interest paid to any "substantial user" of
the Facilities or "related person" as those terms are defined in
Section 147(a) of the Code) is or was includable in the gross income of
a Series 2002 Tax-Exempt Bondholder for Federal income tax purposes
under the Code (or for Virginia state income tax purposes). A
Determination of Taxability does not include any tax upon interest
payable on exempt facility bonds under Section 142 of the Code and
other statutes and regulations in effect on the date of issuance of the
Series 2002 Tax-Exempt Bonds and does not include any change in tax
rates. A Determination of Taxability will be deemed to have occurred on
the date on which the Tax-Exempt Bond Trustee is first notified in
writing of any such enactment, amendment, judgment, decree or
determination.
(D) Selection of 2002 Series A Bonds to be Redeemed. If less
than all of the 2002 Series A Bonds are called for redemption pursuant
to (A), above, and (B), above, the 2002 Tax-Exempt Bonds and the
corresponding 2002 Series A Bonds to be redeemed shall be selected by
lot, in such manner as the Tax-Exempt Bond Trustee, may determine, each
portion of $5,000 principal amount being counted as one 2002 Series A
Bond for this purpose. If a portion of a 2002 Series A Bond having a
principal amount of more than $5,000 shall be called for redemption, a
new registered 2002 Series A Bond in principal amount equal to the
unredeemed portion thereof shall be issued to the registered owner upon
the surrender thereof.
If this Bond is called for redemption, the Company has
covenanted to cause notice of the call for redemption to be given to
each Holder of the Bond to be redeemed at such Holder's address as the
same shall last appear upon the Bond Register, by first class mail at
least 35 and no more than 60 days prior to the Redemption Date.
(E) If an Event of Default with respect to the Bond shall
occur and be continuing, the principal of the Bond may be declared due
and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of Bonds under
the Indenture at any time by the Company with the consent of the
Holders of a majority in aggregate principal amount of Bonds of all
series at the time outstanding affected by such modification. The
Indenture also contains provisions permitting the Holders of a majority
in principal amount of Bonds at the time outstanding, on behalf of the
Holders of all Bonds to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Bond shall be conclusive and binding upon such Holder
and upon all future Holders of this Bond and of any Bond issued upon
the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Bond.
No reference herein to the Indenture and no provision of this
Bond or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
and premium, if any, and interest on this Bond at the times, places and
rates, and in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Bond is registrable
in the Bond Register, upon surrender of this Bond for registration of
transfer at the office or agency maintained by the Bond Registrar in
Richmond, Virginia, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Bond
Registrar duly executed by the holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Bonds of this
series or authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Bonds of this series are issuable only in registered form
without coupons in denominations of $5,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Bonds of this series are exchangeable
for a like aggregate principal amount of Bonds of this series of a
different authorized denomination, but of the same maturity, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Bond for registration of
transfer and subject to the Assignment, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose
name this Bond is registered as the owner hereof for all purposes,
whether or not this Bond be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Unless the context suggests otherwise, all capitalized terms
used herein and not otherwise defined shall have the same meaning
assigned to them in the Indenture.
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds referred to in and secured by the
Indenture of Mortgage and Deed of Trust dated as of May 1, 1992 by and
between Old Dominion Electric Cooperative and Crestar Bank, as trustee,
as the same may be amended and effective from time to time prior to the
Release Date (the "Original Indenture"), under which the undersigned
now acts as Trustee. From and after the Release Date (as defined in the
Eleventh Supplemental Indenture to the Original Indenture), this shall
constitute one of the unsecured Obligations referred to in and entitled
to the benefits of that Amended and Restated Indenture, dated as of
September 1, 2001, between Old Dominion Electric Cooperative and
SunTrust Bank, successor by merger to Crestar Bank, as trustee (the
"Restated Indenture"), which Restated Indenture amends and supersedes
the Original Indenture in its entirety from and after the Release Date.
SUNTRUST BANK, as Trustee
By: SPECIMEN
--------------------
Authorized Signatory
ASSIGNMENT
The Industrial Development Authority of Halifax County,
Virginia (the "Authority"), hereby irrevocably assigns without recourse
the foregoing Bond to SunTrust Bank (the "Tax-Exempt Bond Trustee"), as
trustee, acting pursuant to a Indenture of Trust dated as of November
1, 2002 (the "Tax-Exempt Indenture"), between the Authority and the
Tax-Exempt Bond Trustee and hereby directs the Company, as the issuer
of this Bond, to make all payments of principal of, premium and
interest thereon directly to the Tax-Exempt Bond Trustee at its
principal office in Richmond, Virginia, or at such other place as the
Tax-Exempt Bond Trustee may direct in writing. Such assignment is made
as security for the payment of the Authority's $60,210,000 Exempt
Facility Refunding Revenue Bonds (Old Dominion Electric Cooperative
Project), Series 2002, issued pursuant to the Tax-Exempt Indenture.
INDUSTRIAL DEVELOPMENT
AUTHORITY OF HALIFAX COUNTY,
VIRGINIA
By: SPECIMEN
---------------
Chairman