THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER ACQUIRED PROPERTY PROVISIONS
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OLD DOMINION ELECTRIC COOPERATIVE,
GRANTOR
to
CRESTAR BANK,
TRUSTEE
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of December 15, 1994
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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
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of December 15,
1994 (the "Fourth Supplemental Indenture"), between OLD DOMINION ELECTRIC
COOPERATIVE, a not-for-profit wholesale power supply cooperative incorporated
under the laws of the Commonwealth of Virginia (the "Company"), having its chief
executive office at Innsbrook Corporate Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and CRESTAR BANK, a Virginia banking corporation, as
trustee (the "Trustee"), having its principal corporate trust office at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Company has heretofore executed and delivered an
Indenture of Mortgage and Deed of Trust, dated as of May 1, 1992 (herein
sometimes called the "Original Indenture", and together with any indentures
supplemental thereto, hereinafter sometimes called the "Indenture"), to secure,
as provided therein, its bonds (in the Original Indenture and herein called the
"Bonds"), to be designated generally as its "First Mortgage Bonds", and to be
issued in one or more series as provided in the Original Indenture; and
WHEREAS, the Original Indenture was recorded among the land
records in the Counties of Halifax, Louisa, Spotsylvania and Orange, Virginia,
and a UCC Form 1 concerning the Original Indenture was recorded among the
financing statement records at the Virginia State Corporation Commission and the
Counties of Henrico, Halifax, Louisa, Spotsylvania and Orange, Virginia; and
WHEREAS, the Company has heretofore executed and delivered to
the Trustee its First Supplemental Indenture, dated as of August 1, 1992
(hereinafter called the "First Supplemental Indenture"), its Second Supplemental
Indenture, dated as of December 1, 1992 (hereinafter called the "Second
Supplemental Indenture"), and its Third Supplemental Indenture, dated as of May
1, 1993 (hereinafter caused the "Third Supplemental Indenture"), each of which
provided for the creation of a new series of First Mortgage Bonds, and, with
respect to the First Supplemental Indenture, which subjected to the lien of the
Indenture certain property described therein; and
WHEREAS, the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental 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 recording offices include all recording
offices in which this Fourth Supplemental Indenture will be recorded; and
First Mortgage Bonds, $392,375 0
1992 Series B, Due
March 15, 1994
First Mortgage Bonds $392,376 0
1992 Series B, Due
June 15, 1994
First Mortgage Bonds, $392,376 0
1992 Series B, Due
September 15, 1994
First Mortgage Bonds, $392,376 0
1992 Series B, Due
December 15, 1994
First Mortgage Bonds, $392,375 $392,375
1992 Series B, Due
March 15, 1995
First Mortgage Bonds, $392,376 $392,376
1992 Series B, Due
June 15, 1995
First Mortgage Bonds, $392,376 $392,376
1992 Series B, Due
September 15, 1995
First Mortgage Bonds, $392,376 $392,376
1992 Series B, Due
December 15, 1995
First Mortgage Bonds, $392,375 $392,375
1992 Series B, Due
March 15, 1996
First Mortgage Bonds, $392,376 $392,376
1992 Series B, Due
June 15, 1996
First Mortgage Bonds, $392,376 $392,376
1992 Series B, Due
September 15, 1996
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First Mortgage Bonds, $392,376 $392,376
1992 Series B, Due
December 15, 1996
4.90% First Mortgage $1,025,000 $1,025,000
Bonds, 1992 Series C,
Due December 1, 1997
5.20% First Mortgage $1,075,000 $1,075,000
Bonds, 1992 Series C,
Due December 1, 1998
5.40% First Mortgage $1,130,000 $1,130,000
Bonds, 1992 Series C,
Due December 1, 1999
5.50% First Mortgage $1,190,000 $1,190,000
Bonds, 1992 Series C,
Due December 1, 2000
5.70% First Mortgage $1,255,000 $1,255,000
Bonds, 1992 Series C,
Due December 1, 2001
5.90% First Mortgage $1,330,000 $1,330,000
Bonds, 1992 Series C,
Due December 1, 2002
6.00% First Mortgage $1,405,000 $1,405,000
Bonds, 1992 Series C,
Due December 1, 2003
6.10 % First Mortgage $1,495,000 $1,495,000
Bonds, 1992 Series C,
Due December 1, 2004
6.35% First Mortgage $5,060,00 $5,060,000
Bonds, 1992 Series C,
Due December 1, 2007
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6.50% First Mortgage $10,845,000 $10,845,000
Bonds, 1992 Series C,
Due December 1, 2012
6.00% First Mortgage $34,400,000 $34,400,000
Bonds, 1992 Series C,
Due December 1, 2022
7.48% First Mortgage $130,000,000 $130,000,000
Bonds, 1993 Series A,
Due December 1, 2013
7.78% First Mortgage $120,000,000 $120,000,000
Bonds, 1993 Series A,
Due December 1, 2023
WHEREAS, the Company, as seller, entered into an Asset
Purchase Agreement dated November 28, 1994 (the "Asset Purchase Agreement") with
Esbelto B.V., a limited liability company organized under the laws of The
Netherlands, as purchaser, with respect to certain pollution control facilities
constituting a part of the System subject to the lien and security interest of
the Indenture, which Asset Purchase Agreement provides, subject to the
conditions set forth therein, for the purchase of the pollution control
facilities by Esbelto B.V., subject to the lien and security interest of the
Indenture, and the lease of the pollution control facilities by the Esbelto B.V.
to the Company under a net lease agreement; and
WHEREAS, the obligation of the Company to pay basic rent under
such lease agreement, as well as all of the purchase price to the Company to
reacquire title to the pollution control facilities upon the exercise of a
purchase option at the end of the tenth year of the lease term and all, or a
substantial part, of the purchase price to reacquire title upon early
termination of the lease agreement pursuant to various circumstances set forth
in the lease agreement, will be defeased; and
WHEREAS, the obligation of Esbelto B.V. to reconvey title free
and clear of its interest or those claiming an interest in the pollution control
facilities through Esbelto B.V., or to pay damages in an amount equal to the
cost to the Company of having good and valid title free of such encumbrances
reconveyed to it, will be secured by the execution and delivery of (i) a
security agreement between Esbelto B.V. and the Company and (ii) a lessor deed
of pledge between Esbelto B.V. and the Company; and
WHEREAS, all of the Company's right, title and interest in (i)
the lease agreement of such pollution control facilities, (ii) the security
agreement between Esbelto B.V. and the Company and (iii) the lessor deed of
pledge between Esbelto B.V. and the Company is
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being assigned to the Trustee as part of the Trust Estate pursuant to this
Fourth Supplemental Indenture; and
WHEREAS, the Company desires to execute and deliver this
Fourth Supplemental Indenture, in accordance with the provisions of the Original
Indenture, for the purposes, among others, of (a) further assuring, conveying,
mortgaging and assigning unto the Trustee certain additional property acquired
by the Company, and (b) providing for the sale of such pollution control
facilities to Esbelto E.V., subject to the lien and security interest of the
Indenture, and their lease back to the Company; and
WHEREAS, Section 13.01 of the Original 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 Supplemental Indentures for the purposes and subject to the
conditions set forth in said Section 13.01, including to make any change in the
Indenture that, in the reasonable judgement of the Trustee, will not materially
and adversely affect the rights of the Holders; and
WHEREAS, all acts and proceedings required by law and by the
Restated Articles of Incorporation and Amended and Restated Bylaws of the
Company necessary to constitute the Indenture a valid and binding mortgage and
deed of trust and security agreement and contract for the security of all of the
Bonds, in accordance with its and their terms, have been done and taken; and the
execution and delivery of this Fourth Supplemental Indenture has been in all
respects duly authorized;
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH,
that, to secure the payment of the principal of (and premium, if any) and
interest on the outstanding Secured Bonds, 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, to secure performance of the covenants therein and
herein contained and 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, remise, release, convey, assign, transfer, mortgage, hypothecate,
pledge, set over and confirm to the Trustee, in trust, and hereby grants a
security interest in all property, rights, privileges and franchises (other than
Excepted Property) of the Company of the character described in the Granting
Clauses of the original Indenture, including all such property, rights,
privileges and franchises acquired since the date of execution of the Original
Indenture, including, without limitation, the Pollution Control Assets Lease,
the Security Agreement and the Deed of Pledge and all of those fee and leasehold
interests in real property, if any, which may hereafter be constructed or
acquired by the Company, but subject to all exceptions, reservations and matters
of the character referred to in the Original Indenture, and expressly excepting
and excluding from the lien and operation of the Indenture all properties of the
character specifically excepted by Subdivisions A through K of "Excepted
Property" in the Original Indenture to the extent contemplated thereby, and all
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property heretofore released or otherwise disposed of pursuant to the provisions
of the Original 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 Original 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 Subdivisions A through G, inclusive, of "Excepted
Property" in the Original Indenture then owned or thereafter acquired by the
Company shall immediately, and, in the case of any Excepted Property described
or referred to in Subdivisions H through J, inclusive, of "Excepted Property" in
the Original 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 Original Indenture, subject to the lien of the Indenture any Excepted
Property, 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 Original Indenture), (ii) to the extent permitted by Section
14.06 of the Original 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 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 as shown on Exhibit A of the Original Indenture or as 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.
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UPON CONDITION that, until the happening of an Event of
Default (as defined in Section 1.01 of the Original Indenture) and subject to
the provisions of Article Six of the Original 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 COVENANTS AND DECLARED that the Trust Estate
is to be held and applied by the Trustee, subject to the further covenants,
conditions and trusts set forth in the Original 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 ONE
AMENDMENTS TO ARTICLE ONE OF THE INDENTURE
SECTION 1.01. AMENDMENTS TO EXISTING DEFINITIONS IN SECTION 1.01.
Section 1.01 of the Indenture is amended by amending the
definition of "Permitted Encumbrances" set forth therein by deleting the word
"or" where it appears at the end of clause (25); replacing the period at the end
of clause (26) with "; or"; and by adding the following at the end thereof:
"(27) the interest of the Pollution Control Assets Lessor
under the Pollution Control Assets Lease Documents and the
interests of the Company under the Security Agreement and the
interests of the Company in the Deed of Pledge."
SECTION 1.02. ADDITIONS TO SECTION 1.01.
Section 1.01 of the Indenture is hereby amended by adding
thereto the following definitions:
"Deed of Pledge" means the Lessor Deed of Pledge dated as of
December 30, 1994, between the Pollution Control Assets Lessor and the Company.
"Fourth Supplemental Indenture" means the Fourth Supplemental
Indenture dated as of December 15, 1994 to the Indenture.
"Pollution Control Assets" means those assets described on
Exhibit A to the Fourth Supplemental Indenture.
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"Pollution Control Assets Bill of Sale" means the Limited
Warranty Bill of Sale and Personal Property Agreement dated the date of the sale
of the Pollution Control Assets by the Company to the Pollution Control Lessor
pursuant to the Pollution Control Assets Purchase Agreement between the Company
and the Pollution Control Assets Lessor.
"Pollution Control Assets Event of Default" has the meaning
stated in Section 9.01.
"Pollution Control Assets Guarantor" means Internationale
Nederlander Bank, a banking institution organized under the laws of The
Netherlands.
"Pollution Control Assets Lease" means the Lease Agreement
dated as of December 15, 1994 between the Company and the Pollution Control
Assets Lessor.
"Pollution Control Assets Lease Documents" means the Pollution
Control Assets Bill of Sale, the Pollution Control Assets Lease, the Pollution
Control Assets Purchase Agreement, the Security Agreement and the Deed of
Pledge.
"Pollution Control Assets Lessor" means Esbelto B.V., a
limited liability company organized under the laws of The Netherlands, and any
successor or assignee thereof under the Pollution Control Assets Lease
Documents.
"Pollution Control Assets Purchase Agreement" means the Asset
Purchase Agreement dated November 28, 1994 between the Company and the Pollution
Control Assets Lessor.
"Security Agreement" means the Security Agreement dated as of
December 15, 1994 between the Pollution Control Assets Lessor and the Company.
ARTICLE TWO
AMENDMENT TO SECTION 6.01 OF THE INDENTURE
SECTION 2.01. The second paragraph of section 6.01 of the
Indenture is hereby amended by deleting the word "and" where it appears in
paragraph F thereof; replacing the period at the end of paragraph G thereof with
"; and"; and by adding at the end of such section a paragraph H reading as
follows:
"H. notwithstanding any other provision of this Indenture, to
sell the Pollution Control Assets to the Pollution Control
Assets Lessor pursuant to the Pollution Control Assets
Purchase Agreement and lease such Pollution Control Assets
back from the Pollution Control Assets Lessor pursuant to the
Pollution Control Assets Lease; and in such case the Pollution
Control Assets shall, for all purposes of this
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Indenture, continue to be treated as if they continued to be
owned by the Company, and therefore, among other things, the
Pollution Control Assets shall continue to constitute Bondable
Property, shall not be considered "Retired" solely by reason
of such transaction, and no cash need be deposited with the
Trustee in respect of such transaction."
ARTICLE THREE
AMENDMENT TO SECTION SEVEN OF THE INDENTURE
SECTION 3.01. Article Seven of the Indenture is hereby amended
by adding at the end thereof an additional Section 7.05A reading as follows:
"To the extent that any Trust Moneys consist
of proceeds of insurance upon, or payable in
consequence of destruction damage to, that portion of
the Trust Estate consisting of the Pollution Control
Assets, they may be withdrawn by the Company and
shall be paid by the Trustee upon Company Request to
the Pollution Control Assets Lessor or its designee,
upon receipt by the Trustee of the following:
A. An Officers' Certificate, dated not more than
30 days prior to the date of the Application
for the withdrawal and payment of such Trust
Moneys and signed also in the case of the
following clauses (2), (3), and (4) by an
Engineer or Appraiser, setting forth in
substance as follows:
(1) an amount is, or with an election
which shall be made by the Company,
will be, due and payable to the
Pollution Control Assets Lessor
under the Pollution Control Assets
Lease in respect of such destruction
of or
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damage to the Pollution Control
Assets and the amount of the request
for withdrawal of Trust Moneys to
which such Officer's Certificate
relates does not exceed such amount;
(2) the amount of Trust Moneys
to be withdrawn pursuant to such
Company Request is not more than the
difference of (a) the amount of
proceeds of insurance received in
consequence of such destruction of
or damage to the Pollution Control
Assets which has theretofore been
deposited with the Trustee, minus
either (b) if the Pollution Control
Assets are not to be repaired or
replaced, the difference between (i)
the fair value in the opinion of
said Engineer or Appraiser of the
Pollution Control Assets immediately
prior to the destruction or damage
giving rise to the receipt of the
proceeds of insurance, minus (ii)
the fair value in the opinion of
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said Engineer or Appraiser of the
Pollution Control Assets at the date
of such Officers' Certificate or (c)
if the Pollution Control Assets are
to be repaired or replaced, the cost
of repair or replacement as
estimated by such Engineer or
Appraiser;
(3) whether (a) the aggregate of the
amount of Trust Moneys to be
withdrawn in accordance with such
Application and the fair value of
all Trust Moneys, withdrawn pursuant
to this third paragraph of this
Section 7.05 or securities or other
property released pursuant to
Section 6.02 since the commencement
of the then current calendar year
(as previously certified to the
Trustee in connection with
withdrawals or releases) is 10% or
more of the aggregate principal
amount of all Bonds at the time
Outstanding, and whether said amount
of Trust Moneys to be withdrawn is
at least
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$25,000 and at least 1% of the
aggregate principal amount of all
Bonds at the time Outstanding, or
(b) the amount of the Trust Moneys
to be withdrawn in accordance with
such Application's is more than
$1,000,000;
(4) that, in the opinion of the signers,
the proposed withdrawal will not
impair the security under this
Indenture in contravention of the
provisions hereof;
(5) that no Event of Default exists; and
(6) that all conditions precedent herein
provided for relating to such
withdrawal and payment have been
complied with.
If the facts specified in either subclause (a) or (b) of
clause (3) above are present, such Officer's Certificate
sh&U be accompanied by a certificate of an Independent
Engineer or Independent Appraisal, dated not more than 30
days prior to the date of the Application for withdrawal
and payment of Trust Moneys, to the effect set forth in
clauses (2) and (4) above. Upon compliance with the
foregoing provisions of this Section, the Trustee shall
pay on Company Request an amount of Trust Moneys of the
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character aforesaid equal to the amount stated in such
Officer's Certificate."
ARTICLE FOUR
AMENDMENTS TO ARTICLE NINE OF THE INDENTURE
SECTION 4.01. Section 9.01 of the Indenture is hereby amended
by adding at the end thereof a new paragraph reading as follows:
"POLLUTION CONTROL ASSETS EVENT OF DEFAULT" wherever used
herein shall mean:
(1) the assets and equipment subject to the Pollution Control
Assets shall not be conveyed to the Company in accordance with Section 19.7 of
the Pollution Control Assets Lease by February 1, 2005 (whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decrees or regulation of any
administrative or governmental body); or
(2) (i) The Pollution Control Assets Lessor or the Pollution
Control Assets Guarantor shall (A) commence a voluntary case or other proceeding
seeking bankruptcy (in the Netherlands, "Faillisement") moratorium of debts (in
The Netherlands, "Surseance van Betaling") liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or (B) consent to any such relief or to the
appointment of or taking Possession by any such official in any voluntary case
or other proceeding commenced against it, or (C) admit in writing its inability
to pay its debts generally as they come due, or (D) make a general assignment
for the benefit of creditors, or (E) take any corporate action to authorize any
of the foregoing; or
(ii) An involuntary case or other proceeding shall be
commenced against and/or a petition to that effect has been filed against the
Pollution Control Assets Lessor or the Pollution Control Assets Guarantor with a
court of competent jurisdiction seeking liquidation, reorganization, bankruptcy
(in The Netherlands, "Faillisement") or moratorium of debt (in The Netherlands,
"Surseance van Betaling") or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect, or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official and such involuntary case of other proceeding shall remain
undismissed and unstayed for a period of 10 days if such filing shall be made in
The Netherlands, or 60 days if such filing shall be made other than in The
Netherlands.
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SECTION 4.02. Section 9.04. of the Indenture is hereby
amended by adding at the end thereof a new paragraph reading as follows:
"In case a Pollution Control Assets Event of Default shall
occur and be continuing, the Trustee, in its discretion, may, subject to the
provisions of Section 9.16, exercise any of the remedies provided in clauses A
or B of the preceding paragraph of this Section 9.04 in order to cause title to
the assets and equipment subject to the Pollution Control Assets Lease to be
vested in the Company, free of all Lessor's Liens (as defined in the Pollution
Control Assets Lease). The exercise of such remedies set forth in the first
paragraph of this Section 9.04 shall be the exclusive remedies of the Trustee
for the occurrence of a Pollution Control Assets Event of Default.
SECTION 4.03. Section 9.05 of the Indenture is hereby amended
by adding at the end thereof a new paragraph reading as follows:
"Notwithstanding the preceding provisions of this Section
9.05, upon any sale of any of the Trust Estate constituting assets or equipment
then subject to the Pollution Control Assets Lease solely in consequence of a
Pollution Control Assets Event of Default, whether made under the power of sale
hereby given or pursuant to judicial proceeding, to the extent permitted by law,
the provisions of clause A of the first paragraph of this Section 9.05 shall not
apply."
SECTION 4.04. Section 9.07 of the Indenture is hereby amended
by adding at the end thereof a new paragraph reading as follows:
"Notwithstanding the preceding provisions of this Section
9.07, any proceeds of any sale conducted pursuant to the last paragraph of
Section 9.04 in consequence of a Pollution Control Assets Event of Default
(after deducting the costs and expenses of such sale, including a reasonable
compensation to the Trustee, its agents and counsel, and any taxes, assessments
or dens prior to the lien of this Indenture, except any thereof subject to which
such sale shall have been made), whether made under any power of sale herein
granted or pursuant to judicial proceedings, shall be applied:
A. FIRST: to the payment of all undeducted amounts due
the Trustee under Section 10.07; and
B. SECOND: to the Company if it shall be the purchaser
of the assets and equipment subject to the Pollution
Control Assets Lease in such sale, and otherwise to
the Trustee to be held as Trust Moneys."
ARTICLE FIVE
PURCHASE OPTION UNDER
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POLLUTION CONTROL ASSETS LEASE
SECTION 5.01. The Company hereby covenants that, if it shall
not have previously acquired all of the Pollution Control Assets Lessor's right,
title and interest in the Pollution Control Assets pursuant to any of the
options set forth in the Pollution Control Assets Lease, it will exercise its
purchase option set forth in Section 19.2 of the Pollution Control Assets Lease
to acquire all of the Pollution Control Assets Lessor's right, title and
interest in the Pollution Control Assets on the tenth anniversary of the
commencement of the term of such Lease.
ARTICLE SIX
POWER OF ATTORNEY
SECTION 6.01. The Company does hereby irrevocably constitute
and appoint the Trustee as the true and lawful attorney-in-fact, coupled with an
interest, of the Company to exercise the Company's options set forth in Section
19 of the Pollution Control Assets Lease to purchase the Pollution Control
Assets as permitted thereby, and to perform any obligations of the Company
related to such exercise of such purchase options; PROVIDED, HOWEVER, that the
Trustee shall have no obligation whatsoever to exercise any of such powers
hereby conferred. The Company agrees that any amounts expended by the Trustee
pursuant to the Limited power of attorney made pursuant to this Section, shall
be considered expenses, disbursements and advances by the Trustee under Section
10.07 of the Indenture.
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01. This Fourth Supplemental Indenture is executed
and shall be construed as an indenture supplemental to the Original Indenture,
and shall form a part thereof, and the Original Indenture, as heretofore
supplemented and as hereby supplemented, is hereby confirmed. All capitalized
terms used in this Fourth Supplemental Indenture, unless otherwise defined
herein, shall be taken to have the same meanings as in the Original Indenture.
SECTION 7.02. All recitals in this Fourth Supplemental
Indenture are made by the Company only and not by the Trustee; and all of the
provisions contained in the Original 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 7.03. Whenever in this Fourth 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 Original Indenture, be deemed to
include the successors and assigns of such party, and all the covenants and
agreements in this Fourth Supplemental Indenture contained by or on behalf of
the Company, or by or on behalf of the Trustee shall, subject as aforesaid, bind
and
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inure to the respective benefits of the respective successors and assigns of
such parties, whether so expressed or not.
SECTION 7.04. Nothing in this Fourth Supplemental Indenture,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any separate trustee or co-trustee appointed under
Section 10.14 of the Original Indenture and the Holders of Outstanding Secured
Bonds, any benefit or any legal or equitable right, remedy or claim under this
Fourth Supplemental Indenture.
SECTION 7.05. This Fourth 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 7.06. Although this Fourth Supplemental Indenture is
dated for convenience and for the purpose of reference as of December 15, 1994,
the actual date or dates of execution by the Company and by the Trustee are as
indicated by their respective acknowledgements hereto annexed.
SECTION 7.07. To the extent permitted by applicable law, this
Fourth 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 all situated.
The mailing address of the Company, as debtor, is Post Office Box 2310, Glen
Allen, Virginia, 23058-2310, and the mailing address of the Trustee, as secured
party, is Crestar Bank, Post Office Box 2665, Richmond, Virginia 23261-6665.
SECTION 7.08. By its execution and delivery of this Fourth
Supplemental Indenture, the Trustee sets forth its determination that in the
Trustee's reasonable judgment, the changes to the Indenture made by this Fourth
Supplemental Indenture will not materially and adversely affect the rights of
the Holders.
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IN WITNESS WHEREOF, the parties hereby have caused this Third
supplemental Indenture to be duly executed as of the day and year first above
written.
Company: OLD DOMINION ELECTRIC COOPERATIVE,
Innsbrook Corporate Center a Virginia power supply cooperative
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
Trustee: CRESTAR BANK,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ banking corporation
Corporate Trust Department
Richmond, Virginia 23219
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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STATE NEW YORK )
) ss.
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 30th day of
December 1994, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ , President & CEO of Old Dominion Electric
Cooperative, a Virginia power supply cooperative, in behalf of said association.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Notary Public
(Notarial Seal)
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ACKNOWLEDGEMENT
STATE OF VIRGINIA )
) TO-WIT:
CITY OF RICHMOND )
The foregoing instrument was acknowledged before me this 30th day of
December, 1994 by ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ , a Vice President of CRESTAR BANK, a
Virginia banking corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Notary Public
My Commission expires: 8/31/98
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