File No. 70-8229
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 6
(Post-Effective No. 4)
to
Form U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
GULF POWER COMPANY
500 Bayfront Parkway
Pensacola, Florida 32501
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent
of each applicant or declarant)
Warren E. Tate, Secretary and Treasurer
GULF POWER COMPANY
500 Bayfront Parkway
Pensacola, Florida 32501
(Names and addresses of agents for service)
The Commission is requested to mail signed copies
of all orders, notices and communications to:
W. L. Westbrook John F. Young
Financial Vice President Vice President
The Southern Company Southern Company Services, Inc.
64 Perimeter Center East One Wall Street, 42nd Floor
Atlanta, Georgia 30346 New York, New York 10005
John D. McLanahan, Esq.
Troutman Sanders
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
<PAGE>
Item 3. Exhibits and Financial Statements.
(a) Exhibits.
A-2(a) - Draft of proposed Supplemental Indenture
between Gulf and The Chase Manhattan Bank
(National Association), as Trustee, relating
to Collateral Bonds for the First Series
Revenue Bonds.
A-2(b) - Draft of proposed Supplemental Indenture
between Gulf and The Chase Manhattan Bank
(National Association), as Trustee, relating
to Collateral Bonds for the Second Series
Revenue Bonds.
B-1(a) - Draft of Loan Agreement between Gulf and the
Authority relating to the First Series Revenue
Bonds.
B-1(b) - Draft of Loan Agreement between Gulf and the
Authority relating to the Second Series
Revenue Bonds.
B-2(a) - Draft of Trust Indenture between the Authority
and the Trustee relating to the First Series
Revenue Bonds.
B-2(b) - Draft of Trust Indenture between the Authority
and the Trustee relating to the Second Series
Revenue Bonds.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
amendment to be signed on its behalf by the undersigned thereunto
duly authorized.
Dated: September 15, 1994 GULF POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
<PAGE>
Exhibit A-2(a)
DRAFT
September 6, 1994
GULF POWER COMPANY
TO
THE CHASE MANHATTAN BANK (National Association)
(Formerly The Chase Manhattan Bank, Successor by Merger to
The Chase National Bank of the City of New York)
As Trustee.
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
6.30% Pollution Control Series due September 1, 2024
Dated as of August 15, 1994
This instrument was prepared by G. Edison Holland, Jr.,
Seventh Floor, Blount Building, 3 West Garden Street,
Pensacola, Florida 32501, and Thomas J. Hartland, Jr.,
600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia
30308-2216.
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of August 15, 1994,
made and entered into by and between GULF POWER COMPANY, a
corporation organized and existing under the laws of the
State of Maine (hereinafter commonly referred to as the
"Company"), and THE CHASE MANHATTAN BANK (National
Association), a corporation organized and existing under
the laws of the United States of America, with its
principal office in the Borough of Manhattan, The City of
New York, formerly The Chase Manhattan Bank, successor by
merger to The Chase National Bank of the City of New York,
as trustee (hereinafter commonly referred to as the
"Trustee"), as Trustee under the Indenture dated as of
September 1, 1941 between the Company and The Chase
National Bank of the City of New York, as trustee, and The
Citizens & Peoples National Bank of Pensacola, as trustee
(hereinafter commonly referred to as the "Co-Trustee"), the
Trustee and the Co-Trustee being hereinafter commonly
referred to as the "Trustees", securing bonds issued and to
be issued as provided therein (hereinafter sometimes
referred to as the "Indenture").
WHEREAS the Company and the Trustees have executed and
delivered the Indenture for the purpose of securing an
issue of bonds of the 1971 Series described therein and
such additional bonds as may from time to time be issued
under and in accordance with the terms of the Indenture,
the aggregate principal amount of the bonds to be secured
thereby being not limited, and the Indenture fully
describes and sets forth the property conveyed thereby and
is of record in the Office of the Clerk of the Circuit,
Superior or Chancery Court of each county in the States of
Florida, Georgia and Mississippi in which this Supplemental
Indenture is to be recorded and is on file at the principal
offices of the Trustee, above referred to; and
WHEREAS the Company and the Trustees have executed and
delivered various supplemental indentures for the purpose,
among others, of further securing said bonds and of setting
forth the terms and provisions relating to the bonds of
other series described therein, which supplemental
indentures describe and set forth additional property
conveyed thereby and are also of record in the Offices of
the Clerks of the Circuit, Superior or Chancery Courts of
some or all of the counties in the States of Florida,
Georgia and Mississippi in which this Supplemental
Indenture is to be recorded and are on file at the
principal offices of the Trustee, above referred to; and
-1-
<PAGE>
WHEREAS effective December 9, 1993, the Company and the
Trustee have accepted the resignation of the Co-Trustee
pursuant to Section 16.20 of the Indenture; and
WHEREAS the Indenture provides for the issuance of
bonds thereunder in one or more series and the Company, by
appropriate corporate action in conformity with the terms
of the Indenture, has duly determined to create a series of
bonds under the Indenture to be designated as "6.30%
Pollution Control Series due September 1, 2024"
(hereinafter sometimes referred to as the "Forty-second
Series"), each of which bonds shall bear the descriptive
title of "First Mortgage Bond", the bonds of such series to
bear interest at the annual rate designated in the title
thereof and to mature September 1, 2024; and
WHEREAS each of the bonds of the Forty-second Series is
to be substantially in the following form, with appropriate
insertions and deletions, to-wit:
[FORM OF BOND OF THE FORTY-SECOND SERIES]
GULF POWER COMPANY
First Mortgage Bond, 6.30% Pollution
Control Series Due September 1, 2024
No.......... $..............
Gulf Power Company, a Maine corporation (hereinafter
called the "Company"), for value received, hereby promises
to pay to First Union National Bank of Florida,
Jacksonville, Florida (as trustee under the Trust Indenture
dated as of August 15, 1994 of the Development Authority of
Monroe County, relating to the Revenue Bonds (hereinafter
mentioned)) or registered assigns, the principal sum of
Dollars on September 1, 2024, and to pay to the
registered holder hereof interest on said sum from the
latest semi-annual interest payment date to which interest
has been paid on the bonds of this series preceding the
date hereof, unless the date hereof be an interest payment
date to which interest is being paid, in which case from
the date hereof, or unless the date hereof is prior to
March 1, 1995, in which case from August 15, 1994, at the
rate per annum, until the principal hereof shall have
become due and payable, specified in the title of this
-2-
<PAGE>
bond, payable on March 1 and September 1 in each year
commencing March 1, 1995.
The obligation of the Company to make payments with
respect to the principal of and premium, if any, and
interest on bonds of this series shall be fully or
partially, as the case may be, satisfied and discharged to
the extent that, at any time that any such payment shall be
due, the Company shall have made payments as required by
the Company's Note dated September 29, 1994 issued pursuant
to Section 3.2 of the Loan Agreement dated as of August 15,
1994 (hereinafter referred to as the "Agreement") between
the Development Authority of Monroe County and the Company,
sufficient to pay fully or partially the then due principal
of and premium, if any, and interest on the Development
Authority of Monroe County (Georgia) Pollution Control
Revenue Bonds (Gulf Power Company Plant Scherer Project)
First Series 1994 (hereinafter referred to as the "Revenue
Bonds") or there shall be in the Bond Fund established
pursuant to Section 5.02 of the Trust Indenture dated as of
August 15, 1994 (hereinafter referred to as the "Revenue
Bond Indenture") of the Development Authority of Monroe
County to First Union National Bank of Florida,
Jacksonville, Florida, trustee (hereinafter, together with
any successor trustee under the Revenue Bond Indenture,
referred to as the "Revenue Bond Trustee"), sufficient
available funds to pay fully or partially the then due
principal of and premium, if any, and interest on the
Revenue Bonds. The Trustee (hereinafter mentioned) may
conclusively presume that the obligation of the Company to
make payments with respect to the principal of and premium,
if any, and interest on bonds of this series shall have
been fully satisfied and discharged unless and until the
Trustee shall have received a written notice from the
Revenue Bond Trustee stating (i) that timely payment of the
principal of or premium, if any, or interest on the Revenue
Bonds has not been made, (ii) that there are not sufficient
available funds in such Bond Fund to make such payment and
(iii) the amount of funds required to make such payment.
This bond is one of the bonds issued and to be issued
from time to time under and in accordance with and all
secured by an indenture of mortgage or deed of trust dated
as of September 1, 1941, between the Company and The Chase
National Bank of the City of New York to which The Chase
Manhattan Bank (now The Chase Manhattan Bank (National
Association)) is successor by merger (hereinafter some-
times referred to as the "Trustee"), and The Citizens &
Peoples National Bank of Pensacola, as Trustees, and
-3-
<PAGE>
indentures supplemental thereto, to which indenture and
indentures supplemental thereto (hereinafter referred to
collectively as the "Indenture") reference is hereby made
for a description of the property mortgaged and pledged,
the nature and extent of the security and the rights,
duties and immunities thereunder of the Trustee and the
rights of the holders of said bonds and of the Trustee and
of the Company in respect of such security, and the
limitations on such rights. By the terms of the Indenture
the bonds to be secured thereby are issuable in series
which may vary as to date, amount, date of maturity, rate
of interest and in other respects as in the Indenture
provided.
Upon notice given by mailing the same, by first class
mail postage prepaid, not less than thirty nor more than
forty-five days prior to the date fixed for redemption to
each registered holder of a bond to be redeemed (in whole
or in part) at the last address of such holder appearing on
the registry books, any or all of the bonds of this series
may be redeemed by the Company at any time and from time to
time by the payment of the principal amount thereof and
accrued interest thereon to the date fixed for redemption,
if redeemed by the operation of the improvement fund or the
replacement provisions of the Indenture or by the use of
proceeds of released property, as more fully set forth in
the Indenture.
In the manner provided in the Indenture, the bonds of
this series are also redeemable in whole, by payment of the
principal amount thereof plus accrued interest thereon to
the date fixed for redemption, upon receipt by the Trustee
of a written demand from the Revenue Bond Trustee stating
that the principal amount of all the Revenue Bonds then
outstanding under the Revenue Bond Indenture has been
declared immediately due and payable pursuant to Section
8.02 of the Revenue Bond Indenture. As provided in the
Indenture, the date fixed for such redemption shall be not
more than 180 days after receipt by the Trustee of the
aforesaid written demand and shall be specified in a notice
of redemption to be given not more than 10 nor less than 5
days prior to the date so fixed for such redemption. As in
the Indenture provided, such notice of redemption shall be
rescinded and become null and void for all purposes under
the Indenture upon rescission of the aforesaid written
demand under the Revenue Bond Indenture, and thereupon no
redemption of the bonds of this series and no payments in
respect thereof as specified in such notice of redemption
shall be effected or required.
-4-
<PAGE>
In the manner and to the extent provided in the
Indenture, the bonds of this series are also redeemable in
whole at any time or in part from time to time upon receipt
by the Trustee of a written demand from the Revenue Bond
Trustee specifying a principal amount of Revenue Bonds
which have been called for redemption pursuant to the
second or third paragraph of Section 3.01 of the Revenue
Bond Indenture. As and to the extent provided in the
Indenture, bonds of this series equal in principal amount
to the principal amount of such Revenue Bonds to be
redeemed will be redeemed on the date fixed for redemption
of the Revenue Bonds at the principal amount of such bonds
of this series and accrued interest thereon to the date
fixed for redemption, together (in the case of a redemption
coincident with a redemption of Revenue Bonds pursuant to
the third paragraph of Section 3.01 of the Revenue Bond
Indenture) with a premium equal to a percentage of the
principal amount thereof determined as set forth in the
following tabulation:
If Redeemed During the Twelve Months' Period Ending the
Last Day of August,
Regular
Redemption
Year Premium
2000 2%
2001 1%
and without premium if redeemed on or after September 1,
2001.
In case of certain defaults as specified in the
Indenture, the principal of this bond may be declared or
may become due and payable on the conditions, at the time,
in the manner and with the effect provided in the
Indenture.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest on this bond,
or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, to or against any incorporator,
stockholder, director or officer, past, present or future,
as such, of the Company, or of any predecessor or successor
company, either directly or through the Company, or such
predecessor or successor company, under any constitution or
statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability of
-5-
<PAGE>
incorporators, stockholders, directors and officers, as
such, being waived and released by the holder and owner
hereof by the acceptance of this bond and being likewise
waived and released by the terms of the Indenture.
Every bond of this series shall be dated as of the date
of authentication.
This bond is transferable by the registered owner
hereof, in person or by attorney duly authorized, at the
principal office of the Trustee, in the Borough of
Manhattan, The City of New York, but only in the manner
prescribed in the Indenture, upon the surrender and
cancellation of this bond and the payment of charges for
transfer, and upon any such transfer a new bond or bonds of
the same series and maturity date and for the same
aggregate principal amount, in authorized denominations,
will be issued to the transferee in exchange herefor. The
Company and the Trustee may deem and treat the person in
whose name this bond is registered as the absolute owner
for the purpose of receiving payment and for all other
purposes. Bonds of this series shall be exchangeable for
bonds of other authorized denominations having the same
aggregate principal amount, in the manner and upon the
conditions prescribed in the Indenture. However,
notwithstanding the provisions of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of
this series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
This bond shall not be valid or become obligatory for
any purpose unless and until it shall have been
authenticated by the execution by the Trustee or its
successor in trust under the Indenture of the certificate
endorsed hereon.
IN WITNESS WHEREOF, Gulf Power Company has caused this
bond to be executed in its name by its President or one of
its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal or facsimile thereof to be
affixed hereto or imprinted hereon and attested by its
-6-
<PAGE>
Secretary or one of its Assistant Secretaries by his
signature or a facsimile thereof.
Dated
GULF POWER COMPANY,
By:
President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
As Trustee,
By:
Authorized Officer
AND WHEREAS all acts and things necessary to make the
bonds, when authenticated by the Trustee and issued as in
the Indenture, as heretofore supplemented and amended, and
in this Supplemental Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute the
Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture valid, binding and legal instruments
for the security thereof, have been done and performed, and
the creation, execution and delivery of the Indenture, as
heretofore supplemented and amended, and this Supplemental
Indenture and the creation, execution and issue of bonds
subject to the terms hereof and of the Indenture, have in
all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, and
of the acceptance and purchase by the holders thereof of
the bonds issued and to be issued under the Indenture, and
of the sum of One Dollar duly paid by the Trustee to the
Company, and of other good and valuable considerations, the
-7-
<PAGE>
receipt whereof is hereby acknowledged, and for the purpose
of securing the due and punctual payment of the principal
of and premium, if any, and interest on the bonds now
outstanding under the Indenture, or the Indenture as
supplemented and amended, and the $22,000,000 principal
amount of bonds of the Forty-second Series currently
proposed to be issued and all other bonds which shall be
issued under the Indenture, or the Indenture as
supplemented and amended, and for the purpose of securing
the faithful performance and observance of all covenants
and conditions therein and in any indenture supplemental
thereto set forth, the Company has given, granted,
bargained, sold, transferred, assigned, hypothecated,
pledged, mortgaged, warranted, aliened and conveyed and by
these presents does give, grant, bargain, sell, transfer,
assign, hypothecate, pledge, mortgage, warrant, alien and
convey unto The Chase Manhattan Bank (National
Association), as Trustee, as provided in the Indenture, and
its successor or successors in the trust thereby and hereby
created and to its or their assigns forever, all the right,
title and interest of the Company in and to all
improvements and additions to property of the Company
subject to the lien of the Indenture made, constructed or
otherwise acquired by it and not heretofore described in
the Indenture or any supplement thereto and not heretofore
released from the lien of the Indenture, together (subject
to the provisions of Article X of the Indenture) with the
tolls, rents, revenues, issues, earnings, income, products
and profits thereof, and does hereby confirm that the
Company will not cause or consent to a partition, either
voluntary or through legal proceedings, of property,
whether herein described or heretofore or hereafter
acquired, in which its ownership shall be as a tenant in
common except as permitted by and in conformity with the
provisions of the Indenture and particularly of Article X
thereof.
TOGETHER WITH all and singular the tenements,
hereditaments and appurtenances belonging or in any wise
appertaining to said premises, property, franchises and
rights, or any thereof, referred to in the foregoing
granting clauses, with the reversion and reversions,
remainder and remainders and (subject to the provisions of
Article X of the Indenture) the tolls, rents, revenues,
issues, earnings, income, products and profits thereof, and
all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company
now has or may hereafter acquire in and to the aforesaid
-8-
<PAGE>
premises, property, franchises and rights and every part
and parcel thereof.
TO HAVE AND TO HOLD all said premises, property,
franchises and rights hereby conveyed, assigned, pledged or
mortgaged, or intended so to be, unto the Trustee, its
successor or successors in trust, and its or their assigns
forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the
equal and proportionate benefit and security of the holders
of all bonds and interest coupons now or hereafter issued
under the Indenture, as supplemented and amended, pursuant
to the provisions thereof, and for the enforcement of the
payment of said bonds and coupons when payable and the
performance of and compliance with the covenants and
conditions of the Indenture, as supplemented and amended,
without any preference, distinction or priority as to lien
or otherwise of any bond or bonds over others by reason of
the difference in time of the actual issue, sale or
negotiation thereof or for any other reason whatsoever,
except as otherwise expressly provided in the Indenture, as
supplemented and amended; and so that each and every bond
now or hereafter issued thereunder shall have the same
lien, and so that the principal of and premium, if any, and
interest on every such bond shall, subject to the terms of
the Indenture, as supplemented and amended, be equally and
proportionately secured thereby and hereby, as if it had
been made, executed, delivered, sold and negotiated
simultaneously with the execution and delivery of the
Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and
secured thereunder and hereunder are to be issued,
authenticated and delivered, and all said premises,
property, franchises and rights hereby and by the
Indenture, as supplemented and amended, conveyed, assigned,
pledged or mortgaged, or intended so to be (including all
the right, title and interest of the Company in and to any
and all premises, property, franchises and rights of every
kind and description, real, personal and mixed, tangible
and intangible, thereafter acquired by the Company and
whether or not specifically described in the Indenture or
in any indenture supplemental thereto, except any therein
expressly excepted), are to be dealt with and disposed of,
under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and
purposes in the Indenture, as supplemented and amended,
expressed, and it is hereby agreed as follows:
-9-
<PAGE>
SECTION 1. There is hereby created a series of bonds
designated as hereinabove set forth (said bonds being
sometimes herein referred to as the "bonds of the
Forty-second Series"), and the form thereof shall be
substantially as hereinbefore set forth. Bonds of the
Forty-second Series shall mature on the date specified in
the form thereof hereinbefore set forth, and the definitive
bonds of such series shall be issued only as registered
bonds without coupons. Bonds of the Forty-second Series
shall be in such denominations as the Board of Directors
shall approve, and execution and delivery thereof to the
Trustee for authentication shall be conclusive evidence of
such approval. The serial numbers of bonds of the
Forty-second Series shall be such as may be approved by any
officer of the Company, the execution thereof by any such
officer to be conclusive evidence of such approval.
Bonds of the Forty-second Series, until the principal
thereof shall have become due and payable, shall bear
interest at the annual rate designated in the title
thereof, payable semi-annually on March 1 and September 1
in each year commencing March 1, 1995.
The principal of and premium, if any, and the interest
on the bonds of the Forty-second Series shall be payable in
any coin or currency of the United States of America which
at the time of payment is legal tender for public and
private debts, at the office or agency of the Company in
the Borough of Manhattan, The City of New York, designated
for that purpose.
Bonds of the Forty-second Series may be transferred at
the principal office of the Trustee, in the Borough of
Manhattan, The City of New York. Bonds of the Forty-second
Series shall be exchangeable for other bonds of the same
series, in the manner and upon the conditions prescribed in
the Indenture, upon the surrender of such bonds at said
principal office of the Trustee. However, notwithstanding
the provisions of Section 2.05 of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of the
Forty-second Series other than for any tax or taxes or
other governmental charge required to be paid by the
Company.
Any or all of the bonds of the Forty-second Series
shall be redeemable at any time and from time to time,
prior to maturity, upon notice given by mailing the same,
by first class mail postage prepaid, not less than thirty
nor more than forty-five days prior to the date fixed for
-10-
<PAGE>
redemption to each registered holder of a bond to be
redeemed (in whole or in part) at the last address of such
holder appearing on the registry books, at the principal
amount thereof and accrued interest thereon to the date
fixed for redemption if redeemed by the operation of
Section 4 of the Supplemental Indenture dated as of
October 1, 1964 or of the improvement fund provisions of
any Supplemental Indenture other than this Supplemental
Indenture or by the use of proceeds of released property.
SECTION 2. The obligation of the Company to make
payments with respect to the principal of and premium, if
any, and interest on the bonds of the Forty-second Series
shall be fully or partially, as the case may be, satisfied
and discharged, to the extent that, at the time that any
such payment shall be due, the Company shall have made
payments as required by the Company's Note dated
September 29, 1994 issued pursuant to Section 3.2 of the
Loan Agreement dated as of August 15, 1994 (hereinafter
referred to as the "Agreement") between the Development
Authority of Monroe County and the Company sufficient to
pay fully or partially the then due principal of and
premium, if any, and interest on the Development Authority
of Monroe County (Georgia) Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project) First Series
1994 (hereinafter referred to as the "Revenue Bonds") or
there shall be in the Bond Fund established pursuant to
Section 5.02 of the Trust Indenture dated as of August 15,
1994 (hereinafter referred to as the "Revenue Bond
Indenture") of the Development Authority of Monroe County
to First Union National Bank of Florida, Jacksonville,
Florida, trustee (hereinafter, together with any successor
trustee under the Revenue Bond Indenture, referred to as
the "Revenue Bond Trustee"), sufficient available funds to
pay fully or partially the then due principal of and
premium, if any, and interest on the Revenue Bonds. The
Trustee may conclusively presume that the obligation of the
Company to make payments with respect to the principal of
and premium, if any, and interest on bonds of the
Forty-second Series shall have been fully satisfied and
discharged unless and until the Trustee shall have received
a written notice from the Revenue Bond Trustee stating (i)
that timely payment of the principal of or premium, if any,
or interest on the Revenue Bonds has not been made, (ii)
that there are not sufficient available funds in such Bond
Fund to make such payment and (iii) the amount of funds
required to make such payment.
-11-
<PAGE>
In addition to redemption as provided in Section 1
hereof, Bonds of the Forty-second Series shall also be
redeemable in whole upon receipt by the Trustee of a
written demand for the redemption of the bonds of the
Forty-second Series (hereinafter called "Redemption
Demand") from the Revenue Bond Trustee, stating that the
principal amount of all the Revenue Bonds then outstanding
under the Revenue Bond Indenture has been declared
immediately due and payable pursuant to the provisions of
Section 8.02 of the Revenue Bond Indenture, specifying the
date from which unpaid interest on the Revenue Bonds has
then accrued and stating that such acceleration of maturity
has not been rescinded. The Trustee shall within 10 days
of receiving the Redemption Demand mail a copy thereof to
the Company stamped or otherwise marked to indicate the
date of receipt by the Trustee. The Company shall fix a
redemption date for the redemption so demanded (herein
called the "Demand Redemption") and shall mail to the
Trustee notice of such date at least 30 days prior thereto.
The date fixed for Demand Redemption may be any day not
more than 180 days after receipt by the Trustee of the
Redemption Demand. If the Trustee does not receive such
notice from the Company within 150 days after receipt by
the Trustee of the Redemption Demand, the date for Demand
Redemption shall be deemed fixed at the 180th day after
such receipt. The Trustee shall mail notice of the date
fixed for Demand Redemption (hereinafter called the "Demand
Redemption Notice") to the Revenue Bond Trustee (and the
registered holders of the bonds of the Forty-second Series,
if other than said Revenue Bond Trustee) not more than 10
nor less than 5 days prior to the date fixed for Demand
Redemption, provided, however, that the Trustee shall mail
no Demand Redemption Notice (and no Demand Redemption shall
be made) if prior to the mailing of the Demand Redemption
Notice the Trustee shall have received written notice of
rescission of the Redemption Demand from the Revenue Bond
Trustee. Demand Redemption of the bonds of the
Forty-second Series shall be at the principal amount
thereof and accrued interest thereon to the date fixed for
redemption, and such amount shall become and be due and
payable, subject to the first paragraph of this Section 2,
on the date fixed for Demand Redemption as above provided.
Anything in this paragraph contained to the contrary
notwithstanding, if, after mailing of the Demand Redemption
Notice and prior to the date fixed for Demand Redemption,
the Trustee shall have received a written notice from the
Revenue Bond Trustee that the Redemption Demand has been
rescinded or that the acceleration of maturity of the
Revenue Bonds has been rescinded, the Demand Redemption
-12-
<PAGE>
Notice shall thereupon, without further act of the Trustee
or the Company, be rescinded and become null and void for
all purposes hereunder and no redemption of the bonds of
the Forty-second Series and no payments in respect thereof
as specified in the Demand Redemption Notice shall be
effected or required.
Bonds of the Forty-second Series shall also be
redeemable in whole at any time, or in part from time to
time (hereinafter called the "Regular Redemption"), upon
receipt by the Trustee of a written demand (hereinafter
referred to as the "Regular Redemption Demand") from the
Revenue Bond Trustee stating: (1) the principal amount of
Revenue Bonds to be redeemed pursuant to the third
paragraph of Section 3.01 of the Revenue Bond Indenture;
(2) the date of such redemption and that notice thereof has
been given as required by the Revenue Bond Indenture;
(3) that the Trustee shall call for redemption on the
stated date fixed for redemption of the Revenue Bonds a
principal amount of bonds of the Forty-second Series equal
to the principal amount of Revenue Bonds to be redeemed;
and (4) that the Revenue Bond Trustee, as holder of all
bonds of the Forty-second Series then outstanding, waives
notice of such redemption. The Trustee may conclusively
presume the statements contained in the Regular Redemption
Demand to be correct. Regular Redemption of the bonds of
the Forty-second Series shall be at the principal amount
thereof and accrued interest thereon to the date fixed for
redemption, together with a premium equal to a percentage
of the principal amount thereof determined as set forth in
the tabulation appearing in the form of the bond
hereinbefore set forth, and such amount shall become and be
due and payable, subject to the first paragraph of this
Section 2, on the date fixed for such Regular Redemption,
which shall be the date specified pursuant to item (2) of
the Regular Redemption Demand as above provided.
Bonds of the Forty-second Series shall also be
redeemable in whole at any time (hereinafter called the
"Special Redemption") upon receipt by the Trustee of a
written demand (hereinafter referred to as the "Special
Redemption Demand") from the Revenue Bond Trustee stating:
(1) that the outstanding Revenue Bonds have been called for
redemption in whole pursuant to the second paragraph of
Section 3.01 and Section 3.06 of the Revenue Bond
Indenture; (2) the date of such redemption and that notice
thereof has been given as required by the Revenue Bond
Indenture; (3) that the Trustee shall call for redemption
on the stated date fixed for redemption of the Revenue
-13-
<PAGE>
Bonds a principal amount of bonds of the Forty-second
Series equal to the principal amount of the Revenue Bonds
to be redeemed; and (4) that the Revenue Bond Trustee, as
holder of all bonds of the Forty-second Series then
outstanding, waives notice of such redemption. The Trustee
may conclusively presume the statements contained in the
Special Redemption Demand to be correct. Special
Redemption of the bonds of the Forty-second Series shall be
at the principal amount thereof and accrued interest
thereon to the date fixed for redemption but without
premium, and such amount shall become and be due and
payable, subject to the first paragraph of this Section 2,
on the date fixed for such Special Redemption, which shall
be the date specified pursuant to item (2) of the Special
Redemption Demand as above provided.
SECTION 3. If any interest payment date for bonds of
the Forty-second Series shall be a legal holiday or a day
on which banking institutions in the Borough of Manhattan,
The City of New York, are authorized by law to close, then
such interest payment date shall be the next succeeding day
which shall not be a legal holiday or a day on which such
institutions are so authorized to close.
SECTION 4. Any written notice to the Trustee from the
Revenue Bond Trustee shall be signed by the Revenue Bond
Trustee's duly authorized officer therefor.
SECTION 5. The Company covenants that the provisions
of Section 4 of the Supplemental Indenture dated as of
October 1, 1964, shall remain in full force and effect so
long as any bonds of the Forty-second Series shall be
outstanding under the Indenture.
SECTION 6. As supplemented by this Supplemental
Indenture, the Indenture, as heretofore supplemented and
amended, is in all respects ratified and confirmed and the
Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture shall be read, taken and construed
as one and the same instrument.
SECTION 7. Nothing in this Supplemental Indenture
contained shall, or shall be construed to, confer upon any
person other than a holder of bonds issued under the
Indenture, the Company and the Trustee any right or
interest to avail himself of any benefit under any
provision of the Indenture, as heretofore supplemented and
amended, or of this Supplemental Indenture.
-14-
<PAGE>
SECTION 8. The Trustee assumes no responsibility for
or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution hereof by the
Company or for or in respect of the recitals and statements
contained herein, all of which recitals and statements are
made solely by the Company.
SECTION 9. This Supplemental Indenture may be executed
in several counterparts and all such counterparts executed
and delivered, each as an original, shall constitute but
one and the same instrument.
-15-
<PAGE>
IN WITNESS WHEREOF, said Gulf Power Company has caused
this Supplemental Indenture to be executed in its corporate
name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and to be attested by
its Secretary or one of its Assistant Secretaries, and said
The Chase Manhattan Bank (National Association), as
Trustee, has caused this Supplemental Indenture to be
executed in its corporate name by one of its Vice
Presidents and its corporate seal to be hereunto affixed
and to be attested by one of its Assistant Secretaries, in
several counterparts, all as of the day and year first
above written.
GULF POWER COMPANY
By:
A. E. Scarbrough
Vice President
500 Bayfront Parkway
Pensacola, Florida 32501
Attest:
Warren E. Tate, Secretary
500 Bayfront Parkway
Pensacola, Florida 32501
Signed, sealed and delivered
this ____ day of September, 1994
by GULF POWER COMPANY in the
presence of:
Valerie Blackmon
Gina Naar
<PAGE>
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By:
____________________
____________________
4 Chase Metro Tech Center
3rd Floor
Brooklyn, New York 11245
Attest:
___________________
___________________
4 Chase Metro Tech Center
3rd Floor
Brooklyn, New York 11245
Signed, sealed and delivered
this ____ day of September, 1994
by THE CHASE MANHATTAN BANK
(National Association) in
the presence of:
Name:_______________________
Name:_______________________
<PAGE>
STATE OF FLORIDA
COUNTY OF ESCAMBIA
The foregoing instrument was acknowledged before me this
____ day of September, 1994, by A. E. Scarbrough, Vice
President of GULF POWER COMPANY, a Maine corporation, on
behalf of the corporation. He is personally known to me and
did take an oath.
________________________________
Candace Klinglesmith
Notary Public - State of Florida
My Commission Expires:
________________________________
Commission Number:
________________________________
<PAGE>
STATE OF NEW YORK
COUNTY OF KINGS
The foregoing instrument was acknowledged before me this
____ day of September, 1994, by __________________, a
_______________________ of THE CHASE MANHATTAN BANK (National
Association), a United States corporation, on behalf of the
corporation. She is personally known to me and did take an
oath.
________________________________
Name:___________________________
Notary Public
My Commission Expires:
________________________________
Commission Number:
________________________________
[TJH] H:\WPDOCS\71570\76153\suppind.fmb
<PAGE>
Exhibit A-2(b)
DRAFT
September 13, 1994
GULF POWER COMPANY
TO
THE CHASE MANHATTAN BANK (National Association)
(Formerly The Chase Manhattan Bank, Successor by Merger to
The Chase National Bank of the City of New York)
As Trustee.
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
Second Pollution Control Series due September 1, 2024
Dated as of September 1, 1994
This instrument was prepared by G. Edison Holland, Jr.,
Seventh Floor, Blount Building, 3 West Garden Street,
Pensacola, Florida 32501, and Thomas J. Hartland, Jr.,
600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia
30308-2216.
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of September 1, 1994,
made and entered into by and between GULF POWER COMPANY, a
corporation organized and existing under the laws of the
State of Maine (hereinafter commonly referred to as the
"Company"), and THE CHASE MANHATTAN BANK (National
Association), a corporation organized and existing under
the laws of the United States of America, with its
principal office in the Borough of Manhattan, The City of
New York, formerly The Chase Manhattan Bank, successor by
merger to The Chase National Bank of the City of New York,
as trustee (hereinafter commonly referred to as the
"Trustee"), as Trustee under the Indenture dated as of
September 1, 1941 between the Company and The Chase
National Bank of the City of New York, as trustee, and The
Citizens & Peoples National Bank of Pensacola, as trustee
(hereinafter commonly referred to as the "Co-Trustee"), the
Trustee and the Co-Trustee being hereinafter commonly
referred to as the "Trustees", securing bonds issued and to
be issued as provided therein (hereinafter sometimes
referred to as the "Indenture").
WHEREAS the Company and the Trustees have executed and
delivered the Indenture for the purpose of securing an
issue of bonds of the 1971 Series described therein and
such additional bonds as may from time to time be issued
under and in accordance with the terms of the Indenture,
the aggregate principal amount of the bonds to be secured
thereby being not limited, and the Indenture fully
describes and sets forth the property conveyed thereby and
is of record in the Office of the Clerk of the Circuit,
Superior or Chancery Court of each county in the States of
Florida, Georgia and Mississippi in which this Supplemental
Indenture is to be recorded and is on file at the principal
offices of the Trustee, above referred to; and
WHEREAS the Company and the Trustees have executed and
delivered various supplemental indentures for the purpose,
among others, of further securing said bonds and of setting
forth the terms and provisions relating to the bonds of
other series described therein, which supplemental
indentures describe and set forth additional property
conveyed thereby and are also of record in the Offices of
the Clerks of the Circuit, Superior or Chancery Courts of
some or all of the counties in the States of Florida,
Georgia and Mississippi in which this Supplemental
Indenture is to be recorded and are on file at the
principal offices of the Trustee, above referred to; and
-1-
<PAGE>
WHEREAS effective December 9, 1993, the Company and the
Trustee have accepted the resignation of the Co-Trustee
pursuant to Section 16.20 of the Indenture; and
WHEREAS the Indenture provides for the issuance of
bonds thereunder in one or more series and the Company, by
appropriate corporate action in conformity with the terms
of the Indenture, has duly determined to create a series of
bonds under the Indenture to be designated as "Second
Pollution Control Series due September 1, 2024"
(hereinafter sometimes referred to as the "Forty-third
Series"), each of which bonds shall bear the descriptive
title of "First Mortgage Bond", the bonds of such series to
bear interest as herein provided and to mature September 1,
2024; and
WHEREAS each of the bonds of the Forty-third Series is
to be substantially in the following form, with appropriate
insertions and deletions, to-wit:
[FORM OF BOND OF THE FORTY-THIRD SERIES]
GULF POWER COMPANY
First Mortgage Bond, Second Pollution
Control Series Due September 1, 2024
No.......... $..............
Gulf Power Company, a Maine corporation (hereinafter
called the "Company"), for value received, hereby promises
to pay to First Union National Bank of Florida,
Jacksonville, Florida (as trustee under the Trust Indenture
dated as of September 1, 1994 of the Development Authority
of Monroe County, relating to the Revenue Bonds
(hereinafter mentioned)) or registered assigns, the
principal sum of Dollars on September 1, 2024,
and to pay to the registered holder hereof interest on said
sum from the latest interest payment date to which interest
has been paid on the bonds of this series preceding the
date hereof, unless the date hereof be an interest payment
date to which interest is being paid, in which case from
the date hereof, or unless the date hereof is prior to the
first interest payment date, in which case from
September 28, 1994, at the rates per annum, until the
principal hereof shall have become due and payable, payable
-2-
<PAGE>
on the same dates, as the Revenue Bonds pursuant to the
Revenue Indenture (hereinafter mentioned).
The obligation of the Company to make payments with
respect to the principal of and premium, if any, and
interest on bonds of this series shall be fully or
partially, as the case may be, satisfied and discharged to
the extent that, at any time that any such payment shall be
due, the Company shall have made payments as required by
the Company's Note dated September 28, 1994 issued pursuant
to Section 3.2 of the Loan Agreement dated as of
September 1, 1994 (hereinafter referred to as the
"Agreement") between the Development Authority of Monroe
County and the Company, sufficient to pay fully or
partially the then due principal of and premium, if any,
and interest on the Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Gulf Power
Company Plant Scherer Project) Second Series 1994
(hereinafter referred to as the "Revenue Bonds") or there
shall be on deposit with the Revenue Bond Trustee
(hereinafter mentioned) pursuant to the Trust Indenture
dated as of September 1, 1994 (hereinafter referred to as
the "Revenue Bond Indenture") of the Development Authority
of Monroe County to First Union National Bank of Florida,
Jacksonville, Florida, trustee (hereinafter, together with
any successor trustee under the Revenue Bond Indenture,
referred to as the "Revenue Bond Trustee"), sufficient
available funds to pay fully or partially the then due
principal of and premium, if any, and interest on the
Revenue Bonds. The Trustee (hereinafter mentioned) may
conclusively presume that the obligation of the Company to
make payments with respect to the principal of and premium,
if any, and interest on bonds of this series shall have
been fully satisfied and discharged unless and until the
Trustee shall have received a written notice from the
Revenue Bond Trustee stating (i) that timely payment of the
principal of or premium, if any, or interest on the Revenue
Bonds has not been made, (ii) that there are not sufficient
available funds in such Bond Fund to make such payment and
(iii) the amount of funds required to make such payment.
This bond is one of the bonds issued and to be issued
from time to time under and in accordance with and all
secured by an indenture of mortgage or deed of trust dated
as of September 1, 1941, between the Company and The Chase
National Bank of the City of New York to which The Chase
Manhattan Bank (now The Chase Manhattan Bank (National
Association)) is successor by merger (hereinafter some-
times referred to as the "Trustee"), and The Citizens &
-3-
<PAGE>
Peoples National Bank of Pensacola, as Trustees, and
indentures supplemental thereto, to which indenture and
indentures supplemental thereto (hereinafter referred to
collectively as the "Indenture") reference is hereby made
for a description of the property mortgaged and pledged,
the nature and extent of the security and the rights,
duties and immunities thereunder of the Trustee and the
rights of the holders of said bonds and of the Trustee and
of the Company in respect of such security, and the
limitations on such rights. By the terms of the Indenture
the bonds to be secured thereby are issuable in series
which may vary as to date, amount, date of maturity, rate
of interest and in other respects as in the Indenture
provided.
Upon notice given by mailing the same, by first class
mail postage prepaid, not less than thirty nor more than
forty-five days prior to the date fixed for redemption to
each registered holder of a bond to be redeemed (in whole
or in part) at the last address of such holder appearing on
the registry books, any or all of the bonds of this series
may be redeemed by the Company at any time and from time to
time by the payment of the principal amount thereof and
accrued interest thereon to the date fixed for redemption,
if redeemed by the operation of the improvement fund or the
replacement provisions of the Indenture or by the use of
proceeds of released property, as more fully set forth in
the Indenture.
In the manner provided in the Indenture, the bonds of
this series are also redeemable in whole, by payment of the
principal amount thereof plus accrued interest thereon to
the date fixed for redemption, upon receipt by the Trustee
of a written demand from the Revenue Bond Trustee stating
that the principal amount of all the Revenue Bonds then
outstanding under the Revenue Bond Indenture has been
declared immediately due and payable pursuant to Section
8.02 of the Revenue Bond Indenture. As provided in the
Indenture, the date fixed for such redemption shall be not
more than 180 days after receipt by the Trustee of the
aforesaid written demand and shall be specified in a notice
of redemption to be given not more than 10 nor less than 5
days prior to the date so fixed for such redemption. As in
the Indenture provided, such notice of redemption shall be
rescinded and become null and void for all purposes under
the Indenture upon rescission of the aforesaid written
demand under the Revenue Bond Indenture, and thereupon no
redemption of the bonds of this series and no payments in
-4-
<PAGE>
respect thereof as specified in such notice of redemption
shall be effected or required.
In the manner and to the extent provided in the
Indenture, the bonds of this series are also redeemable in
whole at any time or in part from time to time upon receipt
by the Trustee of a written demand from the Revenue Bond
Trustee specifying a principal amount of Revenue Bonds
which have been called for redemption pursuant to the
optional redemption provisions of the Revenue Bonds and the
Revenue Bond Indenture. As and to the extent provided in
the Indenture, bonds of this series equal in principal
amount to the principal amount of such Revenue Bonds to be
redeemed pursuant to such optional redemption provisions
will be redeemed on the date fixed for redemption of the
Revenue Bonds at the principal amount of such bonds of this
series and accrued interest thereon to the date fixed for
redemption, together with a premium equal to the redemption
premium (if any) payable upon such redemption of Revenue
Bonds.
In case of certain defaults as specified in the
Indenture, the principal of this bond may be declared or
may become due and payable on the conditions, at the time,
in the manner and with the effect provided in the
Indenture.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest on this bond,
or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, to or against any incorporator,
stockholder, director or officer, past, present or future,
as such, of the Company, or of any predecessor or successor
company, either directly or through the Company, or such
predecessor or successor company, under any constitution or
statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability of
incorporators, stockholders, directors and officers, as
such, being waived and released by the holder and owner
hereof by the acceptance of this bond and being likewise
waived and released by the terms of the Indenture.
Every bond of this series shall be dated as of the date
of authentication.
This bond is transferable by the registered owner
hereof, in person or by attorney duly authorized, at the
principal office of the Trustee, in the Borough of
Manhattan, The City of New York, but only in the manner
-5-
<PAGE>
prescribed in the Indenture, upon the surrender and
cancellation of this bond and the payment of charges for
transfer, and upon any such transfer a new bond or bonds of
the same series and maturity date and for the same
aggregate principal amount, in authorized denominations,
will be issued to the transferee in exchange herefor. The
Company and the Trustee may deem and treat the person in
whose name this bond is registered as the absolute owner
for the purpose of receiving payment and for all other
purposes. Bonds of this series shall be exchangeable for
bonds of other authorized denominations having the same
aggregate principal amount, in the manner and upon the
conditions prescribed in the Indenture. However,
notwithstanding the provisions of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of
this series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
This bond shall not be valid or become obligatory for
any purpose unless and until it shall have been
authenticated by the execution by the Trustee or its
successor in trust under the Indenture of the certificate
endorsed hereon.
IN WITNESS WHEREOF, Gulf Power Company has caused this
bond to be executed in its name by its President or one of
its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal or facsimile thereof to be
affixed hereto or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries by his
signature or a facsimile thereof.
Dated GULF POWER COMPANY,
By:
President
Attest:
Secretary
-6-
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
As Trustee,
By:
Authorized Officer
AND WHEREAS all acts and things necessary to make the
bonds, when authenticated by the Trustee and issued as in
the Indenture, as heretofore supplemented and amended, and
in this Supplemental Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute the
Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture valid, binding and legal instruments
for the security thereof, have been done and performed, and
the creation, execution and delivery of the Indenture, as
heretofore supplemented and amended, and this Supplemental
Indenture and the creation, execution and issue of bonds
subject to the terms hereof and of the Indenture, have in
all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, and
of the acceptance and purchase by the holders thereof of
the bonds issued and to be issued under the Indenture, and
of the sum of One Dollar duly paid by the Trustee to the
Company, and of other good and valuable considerations, the
receipt whereof is hereby acknowledged, and for the purpose
of securing the due and punctual payment of the principal
of and premium, if any, and interest on the bonds now
outstanding under the Indenture, or the Indenture as
supplemented and amended, and the $20,000,000 principal
amount of bonds of the Forty-third Series currently
proposed to be issued and all other bonds which shall be
issued under the Indenture, or the Indenture as
supplemented and amended, and for the purpose of securing
the faithful performance and observance of all covenants
and conditions therein and in any indenture supplemental
thereto set forth, the Company has given, granted,
bargained, sold, transferred, assigned, hypothecated,
pledged, mortgaged, warranted, aliened and conveyed and by
-7-
<PAGE>
these presents does give, grant, bargain, sell, transfer,
assign, hypothecate, pledge, mortgage, warrant, alien and
convey unto The Chase Manhattan Bank (National
Association), as Trustee, as provided in the Indenture, and
its successor or successors in the trust thereby and hereby
created and to its or their assigns forever, all the right,
title and interest of the Company in and to the property
described in Exhibit "A" attached hereto and by this
reference made a part hereof, together (subject to the
provisions of Article X of the Indenture) with the tolls,
rents, revenues, issues, earnings, income, products and
profits thereof, and does hereby confirm that the Company
will not cause or consent to a partition, either voluntary
or through legal proceedings, of property, whether herein
described or heretofore or hereafter acquired, in which its
ownership shall be as a tenant in common except as
permitted by and in conformity with the provisions of the
Indenture and particularly of Article X thereof.
TOGETHER WITH all and singular the tenements,
hereditaments and appurtenances belonging or in any wise
appertaining to said premises, property, franchises and
rights, or any thereof, referred to in the foregoing
granting clauses, with the reversion and reversions,
remainder and remainders and (subject to the provisions of
Article X of the Indenture) the tolls, rents, revenues,
issues, earnings, income, products and profits thereof, and
all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company
now has or may hereafter acquire in and to the aforesaid
premises, property, franchises and rights and every part
and parcel thereof.
TO HAVE AND TO HOLD all said premises, property,
franchises and rights hereby conveyed, assigned, pledged or
mortgaged, or intended so to be, unto the Trustee, its
successor or successors in trust, and its or their assigns
forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the
equal and proportionate benefit and security of the holders
of all bonds and interest coupons now or hereafter issued
under the Indenture, as supplemented and amended, pursuant
to the provisions thereof, and for the enforcement of the
payment of said bonds and coupons when payable and the
performance of and compliance with the covenants and
conditions of the Indenture, as supplemented and amended,
without any preference, distinction or priority as to lien
or otherwise of any bond or bonds over others by reason of
-8-
<PAGE>
the difference in time of the actual issue, sale or
negotiation thereof or for any other reason whatsoever,
except as otherwise expressly provided in the Indenture, as
supplemented and amended; and so that each and every bond
now or hereafter issued thereunder shall have the same
lien, and so that the principal of and premium, if any, and
interest on every such bond shall, subject to the terms of
the Indenture, as supplemented and amended, be equally and
proportionately secured thereby and hereby, as if it had
been made, executed, delivered, sold and negotiated
simultaneously with the execution and delivery of the
Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and
secured thereunder and hereunder are to be issued,
authenticated and delivered, and all said premises,
property, franchises and rights hereby and by the
Indenture, as supplemented and amended, conveyed, assigned,
pledged or mortgaged, or intended so to be (including all
the right, title and interest of the Company in and to any
and all premises, property, franchises and rights of every
kind and description, real, personal and mixed, tangible
and intangible, thereafter acquired by the Company and
whether or not specifically described in the Indenture or
in any indenture supplemental thereto, except any therein
expressly excepted), are to be dealt with and disposed of,
under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and
purposes in the Indenture, as supplemented and amended,
expressed, and it is hereby agreed as follows:
SECTION 1. There is hereby created a series of bonds
designated as hereinabove set forth (said bonds being
sometimes herein referred to as the "bonds of the
Forty-third Series"), and the form thereof shall be
substantially as hereinbefore set forth. Bonds of the
Forty-third Series shall mature on the date specified in
the form thereof hereinbefore set forth, and the definitive
bonds of such series shall be issued only as registered
bonds without coupons. Bonds of the Forty-third Series
shall be in such denominations as the Board of Directors
shall approve, and execution and delivery thereof to the
Trustee for authentication shall be conclusive evidence of
such approval. The serial numbers of bonds of the
Forty-third Series shall be such as may be approved by any
officer of the Company, the execution thereof by any such
officer to be conclusive evidence of such approval.
-9-
<PAGE>
Bonds of the Forty-third Series, until the principal
thereof shall have become due and payable, shall bear
interest at the same rates, payable on the same dates, as
the Revenue Bonds pursuant to the Revenue Bond Indenture
(each as hereinafter defined).
The principal of and premium, if any, and the interest
on the bonds of the Forty-third Series shall be payable in
any coin or currency of the United States of America which
at the time of payment is legal tender for public and
private debts, at the office or agency of the Company in
the Borough of Manhattan, The City of New York, designated
for that purpose.
Bonds of the Forty-third Series may be transferred at
the principal office of the Trustee, in the Borough of
Manhattan, The City of New York. Bonds of the Forty-third
Series shall be exchangeable for other bonds of the same
series, in the manner and upon the conditions prescribed in
the Indenture, upon the surrender of such bonds at said
principal office of the Trustee. However, notwithstanding
the provisions of Section 2.05 of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of the
Forty-third Series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
Any or all of the bonds of the Forty-third Series shall
be redeemable at any time and from time to time, prior to
maturity, upon notice given by mailing the same, by first
class mail postage prepaid, not less than thirty nor more
than forty-five days prior to the date fixed for redemption
to each registered holder of a bond to be redeemed (in
whole or in part) at the last address of such holder
appearing on the registry books, at the principal amount
thereof and accrued interest thereon to the date fixed for
redemption if redeemed by the operation of Section 4 of the
Supplemental Indenture dated as of October 1, 1964 or of
the improvement fund provisions of any Supplemental
Indenture other than this Supplemental Indenture or by the
use of proceeds of released property.
SECTION 2. The obligation of the Company to make
payments with respect to the principal of and premium, if
any, and interest on the bonds of the Forty-third Series
shall be fully or partially, as the case may be, satisfied
and discharged, to the extent that, at the time that any
such payment shall be due, the Company shall have made
payments as required by the Company's Note dated
September 28, 1994 issued pursuant to Section 3.2 of the
-10-
<PAGE>
Loan Agreement dated as of September 1, 1994 (hereinafter
referred to as the "Agreement") between the Development
Authority of Monroe County and the Company sufficient to
pay fully or partially the then due principal of and
premium, if any, and interest on the Development Authority
of Monroe County (Georgia) Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project) Second Series
1994 (hereinafter referred to as the "Revenue Bonds") or
there shall be on deposit with the Revenue Bond Trustee (as
hereinafter defined) pursuant to the Trust Indenture dated
as of September 1, 1994 (hereinafter referred to as the
"Revenue Bond Indenture") of the Development Authority of
Monroe County to First Union National Bank of Florida,
Jacksonville, Florida, trustee (hereinafter, together with
any successor trustee under the Revenue Bond Indenture,
referred to as the "Revenue Bond Trustee"), sufficient
available funds to pay fully or partially the then due
principal of and premium, if any, and interest on the
Revenue Bonds. The Trustee may conclusively presume that
the obligation of the Company to make payments with respect
to the principal of and premium, if any, and interest on
bonds of the Forty-third Series shall have been fully
satisfied and discharged unless and until the Trustee shall
have received a written notice from the Revenue Bond
Trustee stating (i) that timely payment of the principal of
or premium, if any, or interest on the Revenue Bonds has
not been made, (ii) that there are not sufficient available
funds in such Bond Fund to make such payment and (iii) the
amount of funds required to make such payment.
In addition to redemption as provided in Section 1
hereof, Bonds of the Forty-third Series shall also be
redeemable in whole upon receipt by the Trustee of a
written demand for the redemption of the bonds of the
Forty-third Series (hereinafter called "Redemption Demand")
from the Revenue Bond Trustee, stating that the principal
amount of all the Revenue Bonds then outstanding under the
Revenue Bond Indenture has been declared immediately due
and payable pursuant to the provisions of Section 8.02 of
the Revenue Bond Indenture, specifying the date from which
unpaid interest on the Revenue Bonds has then accrued and
stating that such acceleration of maturity has not been
rescinded. The Trustee shall within 10 days of receiving
the Redemption Demand mail a copy thereof to the Company
stamped or otherwise marked to indicate the date of receipt
by the Trustee. The Company shall fix a redemption date
for the redemption so demanded (herein called the "Demand
Redemption") and shall mail to the Trustee notice of such
date at least 30 days prior thereto. The date fixed for
-11-
<PAGE>
Demand Redemption may be any day not more than 180 days
after receipt by the Trustee of the Redemption Demand. If
the Trustee does not receive such notice from the Company
within 150 days after receipt by the Trustee of the
Redemption Demand, the date for Demand Redemption shall be
deemed fixed at the 180th day after such receipt. The
Trustee shall mail notice of the date fixed for Demand
Redemption (hereinafter called the "Demand Redemption
Notice") to the Revenue Bond Trustee (and the registered
holders of the bonds of the Forty-third Series, if other
than said Revenue Bond Trustee) not more than 10 nor less
than 5 days prior to the date fixed for Demand Redemption,
provided, however, that the Trustee shall mail no Demand
Redemption Notice (and no Demand Redemption shall be made)
if prior to the mailing of the Demand Redemption Notice the
Trustee shall have received written notice of rescission of
the Redemption Demand from the Revenue Bond Trustee.
Demand Redemption of the bonds of the Forty-third Series
shall be at the principal amount thereof and accrued
interest thereon to the date fixed for redemption, and such
amount shall become and be due and payable, subject to the
first paragraph of this Section 2, on the date fixed for
Demand Redemption as above provided. Anything in this
paragraph contained to the contrary notwithstanding, if,
after mailing of the Demand Redemption Notice and prior to
the date fixed for Demand Redemption, the Trustee shall
have received a written notice from the Revenue Bond
Trustee that the Redemption Demand has been rescinded or
that the acceleration of maturity of the Revenue Bonds has
been rescinded, the Demand Redemption Notice shall
thereupon, without further act of the Trustee or the
Company, be rescinded and become null and void for all
purposes hereunder and no redemption of the bonds of the
Forty-third Series and no payments in respect thereof as
specified in the Demand Redemption Notice shall be effected
or required.
Bonds of the Forty-third Series shall also be
redeemable in whole at any time, or in part from time to
time (hereinafter called the "Regular Redemption"), upon
receipt by the Trustee of a written demand (hereinafter
referred to as the "Regular Redemption Demand") from the
Revenue Bond Trustee stating: (1) the principal amount of
Revenue Bonds to be redeemed pursuant to the optional
redemption provisions of the Revenue Bonds and the Revenue
Bond Indenture; (2) the date of such redemption and that
notice thereof has been given as required by the Revenue
Bond Indenture; (3) that the Trustee shall call for
redemption on the stated date fixed for redemption of the
-12-
<PAGE>
Revenue Bonds a principal amount of bonds of the
Forty-third Series equal to the principal amount of Revenue
Bonds to be redeemed; and (4) that the Revenue Bond
Trustee, as holder of all bonds of the Forty-third Series
then outstanding, waives notice of such redemption. The
Trustee may conclusively presume the statements contained
in the Regular Redemption Demand to be correct. Regular
Redemption of the bonds of the Forty-third Series shall be
at the principal amount thereof and accrued interest
thereon to the date fixed for redemption, together with a
premium equal to the redemption premium (if any) payable
upon such redemption of Revenue Bonds, and such amount
shall become and be due and payable, subject to the first
paragraph of this Section 2, on the date fixed for such
Regular Redemption, which shall be the date specified
pursuant to item (2) of the Regular Redemption Demand as
above provided.
SECTION 3. If any interest payment date for bonds of
the Forty-third Series shall be a legal holiday or a day on
which banking institutions in the Borough of Manhattan, The
City of New York, are authorized by law to close, then such
interest payment date shall be the next succeeding day
which shall not be a legal holiday or a day on which such
institutions are so authorized to close.
SECTION 4. Any written notice to the Trustee from the
Revenue Bond Trustee shall be signed by the Revenue Bond
Trustee's duly authorized officer therefor.
SECTION 5. The Company covenants that the provisions
of Section 4 of the Supplemental Indenture dated as of
October 1, 1964, shall remain in full force and effect so
long as any bonds of the Forty-third Series shall be
outstanding under the Indenture.
SECTION 6. As supplemented by this Supplemental
Indenture, the Indenture, as heretofore supplemented and
amended, is in all respects ratified and confirmed and the
Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture shall be read, taken and construed
as one and the same instrument.
SECTION 7. Nothing in this Supplemental Indenture
contained shall, or shall be construed to, confer upon any
person other than a holder of bonds issued under the
Indenture, the Company and the Trustee any right or
interest to avail himself of any benefit under any
-13-
<PAGE>
provision of the Indenture, as heretofore supplemented and
amended, or of this Supplemental Indenture.
SECTION 8. The Trustee assumes no responsibility for
or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution hereof by the
Company or for or in respect of the recitals and statements
contained herein, all of which recitals and statements are
made solely by the Company.
SECTION 9. This Supplemental Indenture may be executed
in several counterparts and all such counterparts executed
and delivered, each as an original, shall constitute but
one and the same instrument.
-14-
<PAGE>
IN WITNESS WHEREOF, said Gulf Power Company has caused
this Supplemental Indenture to be executed in its corporate
name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and to be attested by
its Secretary or one of its Assistant Secretaries, and said
The Chase Manhattan Bank (National Association), as
Trustee, has caused this Supplemental Indenture to be
executed in its corporate name by one of its Vice
Presidents and its corporate seal to be hereunto affixed
and to be attested by one of its Assistant Secretaries, in
several counterparts, all as of the day and year first
above written.
GULF POWER COMPANY
By:
A. E. Scarbrough
Vice President
500 Bayfront Parkway
Pensacola, Florida 32501
Attest:
Warren E. Tate, Secretary
500 Bayfront Parkway
Pensacola, Florida 32501
Signed, sealed and delivered
this ____ day of September, 1994
by GULF POWER COMPANY in the
presence of:
Valerie Blackmon
Gina Naar
<PAGE>
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By:
____________________
____________________
4 Chase MetroTech Center
3rd Floor
Brooklyn, New York 11245
Attest:
___________________
___________________
4 Chase MetroTech Center
3rd Floor
Brooklyn, New York 11245
Signed, sealed and delivered
this ____ day of September, 1994
by THE CHASE MANHATTAN BANK
(National Association) in
the presence of:
Name:_______________________
Name:_______________________
<PAGE>
STATE OF FLORIDA
COUNTY OF ESCAMBIA
The foregoing instrument was acknowledged before me this
____ day of September, 1994, by A. E. Scarbrough, Vice
President of GULF POWER COMPANY, a Maine corporation, on
behalf of the corporation. He is personally known to me and
did take an oath.
________________________________
Candace Klinglesmith
Notary Public - State of Florida
My Commission Expires:
________________________________
Commission Number:
________________________________
<PAGE>
STATE OF NEW YORK
COUNTY OF KINGS
The foregoing instrument was acknowledged before me this
____ day of September, 1994, by __________________, a
_______________________ of THE CHASE MANHATTAN BANK (National
Association), a United States corporation, on behalf of the
corporation. She is personally known to me and did take an
oath.
________________________________
Name:___________________________
Notary Public
My Commission Expires:
________________________________
Commission Number:
________________________________
[TJH] H:\WPDOCS\71570\76152\suppind.fmb
<PAGE>
Exhibit B-1(a)
DRAFT
September 6, 1994
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
and
GULF POWER COMPANY
_______________
LOAN AGREEMENT
_______________
Dated as of August 15, 1994
Relating to Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project)
First Series 1994
<PAGE>
LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Loan Agreement)
PAGE
ARTICLE I
DEFINITIONS
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project . 2
SECTION 2.2. Issuance of First Series 1994 Bonds;
Additional Bonds . . . . . . . . . . . . . 2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer . . . . . . . . . . . . . . 3
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable . . . . . . . . . . . . . . . . . . 3
SECTION 3.3. Obligation of the Company Unconditional . . 3
SECTION 3.4. First Mortgage Bonds . . . . . . . . . . . 4
SECTION 3.5. Assignment and Pledge of Payments and
Rights Under the Notes, the Agreement and the
First Mortgage Bonds . . . . . . . . . . . 4
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project . . . . . . . . . . . . . . 5
SECTION 4.2. Indemnity Against Claims . . . . . . . . . 5
SECTION 4.3. The Company to Maintain Its Corporate
Existence; Conditions Under Which Exceptions
Permitted . . . . . . . . . . . . . . . . . 5
SECTION 4.4. Annual Statement . . . . . . . . . . . . . 6
SECTION 4.5. Further Assurances and Corrective
Instruments . . . . . . . . . . . . . . . . 6
SECTION 4.6. Maintenance of Project by Company . . . . . 6
SECTION 4.7. Redemption or Purchase of Bonds . . . . . . 6
SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . 7
- i -
<PAGE>
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . 7
SECTION 5.2. Remedies on Default . . . . . . . . . . . . 9
SECTION 5.3. Agreement to Pay Attorneys' Fees and
Expenses . . . . . . . . . . . . . . . . . 9
SECTION 5.4. No Additional Waiver Implied by One Waiver 9
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement . . . . . . . . . . 10
SECTION 6.2. Notices . . . . . . . . . . . . . . . . . 10
SECTION 6.3. Binding Effect . . . . . . . . . . . . . . 10
SECTION 6.4. Severability . . . . . . . . . . . . . . . 10
SECTION 6.5. Amounts Remaining in the Bond Fund . . . . 10
SECTION 6.6. Amendments . . . . . . . . . . . . . . . . 10
SECTION 6.7. Execution in Counterparts . . . . . . . . 11
SECTION 6.8. Applicable Law . . . . . . . . . . . . . . 11
SECTION 6.9. Captions . . . . . . . . . . . . . . . . . 11
SECTION 6.10. Other Financing . . . . . . . . . . . . . 11
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . 12
- ii -
<PAGE>
LOAN AGREEMENT dated as of August 15, 1994 between the
DEVELOPMENT AUTHORITY OF MONROE COUNTY, a public body corporate
and politic duly organized and existing under the Constitution and
laws of the State of Georgia (the "Issuer"), including
particularly the Development Authorities Law set forth in the
Official Code of Ga. Ann. Section 36-62-1, et seq., as amended
(the "Act"), and GULF POWER COMPANY, a corporation organized and
existing under the laws of the State of Maine (the "Company"),
evidencing the agreement of the parties hereto.
In consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as
follows (provided that in the performance of the agreements of the
Issuer herein contained, any obligation it may thereby incur for
the payment of money shall not be a general debt, liability or
obligation of the Issuer, or of the State of Georgia or any
political subdivision thereof but shall be payable solely out of
the revenues and proceeds derived from this Agreement and the
Notes (hereinafter defined), the sale of the Bonds referred to
herein and any amounts received from the first mortgage bonds
referred to in Section 3.4 hereof):
ARTICLE I
DEFINITIONS
"Additional Bonds", "Bondholder", "Bonds", "Bond Fund",
"Government Obligations" and "Trustee" have the same meanings
given and assigned to such words in Article I of the Indenture
(hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
"Event of Default" means any of the occurrences enumerated
in Section 5.1 of this Agreement.
"First Mortgage" means the Indenture dated as of September 1,
1941 between the Company and The Chase Manhattan Bank (National
Association), as trustee, as heretofore and hereafter supplemented
and amended by various supplemental indentures, including but not
limited to the Supplemental Indenture dated as of August 15, 1994.
"First Mortgage Bonds" means the first mortgage bonds issued
under the First Mortgage pursuant to, and having the terms
described in, Section 3.4 hereof.
"Indenture" means the Trust Indenture dated as of August 15,
1994, relating to Pollution Control Revenue Bonds, between the
Issuer and First Union National Bank of Florida, as Trustee,
pursuant to which the Bonds are authorized to be issued, and
including any indenture supplemental thereto.
<PAGE>
"Loan" means the loan to be made by the Issuer to the Company
of the proceeds (which shall be deemed to include the underwriting
discounts, if any, and original issue discount, if any) of the
sale of the Bonds, exclusive of any accrued interest paid by the
initial purchasers of the Bonds upon the delivery thereof.
"Notes" means the non-negotiable promissory notes of the
Company issued pursuant to Section 3.2 hereof, in the form set
forth in Exhibit A hereto.
"Original Agreement" means the Loan Agreement, dated as of
December 1, 1984, between the Issuer and the Company, delivered in
connection with the issuance of the Refunded Bonds.
"Plans" and "Project" mean the "Plans" and "Project" as
respectively defined in Article I of the Original Agreement.
"Refunded Bonds" means $22,000,000 principal amount of the
Issuer's Pollution Control Revenue Bonds (Gulf Power Company Plant
Scherer Project), First Series 1984.
"First Series 1994 Bonds" means the bonds authorized to be
issued under Section 2.02 of the Indenture.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The
Company represents that it has caused the acquisition,
construction, installation and equipping of the Project to be
completed substantially in accordance with the Plans.
SECTION 2.2. Issuance of First Series 1994 Bonds; Additional
Bonds. In order to provide funds for the purpose set forth in
Section 3.1 hereof, the Issuer agrees that it will initially issue
and deliver the First Series 1994 Bonds to the purchasers thereof
at a price equal to 100% of the principal amount thereof, plus
accrued interest from August 15, 1994 to the date of payment and
delivery, and apply and deposit the proceeds thereof in accordance
with the terms of the Indenture. The Indenture shall be
satisfactory in form and substance to the Company and shall
provide the manner in which, and the purposes for which, proceeds
of Bonds may be used and invested.
If no Event of Default shall have occurred and be continuing,
the Issuer will authorize the sale of and use its best efforts to
sell from time to time, to the extent permitted by law, Additional
Bonds, in amounts specified by the Company and upon the terms and
- 2 -
<PAGE>
conditions provided in the Indenture, for any purpose permitted by
the Indenture. The Issuer will deposit the proceeds of any such
Additional Bonds with the Trustee in accordance with the terms of
the Indenture.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to
make the Loan to the Company for the purpose, in the case of the
proceeds of the First Series 1994 Bonds, of refunding the Refunded
Bonds within 90 days after the date of initial issuance of the
First Series 1994 Bonds. The Company hereby agrees to cause the
proceeds of the First Series 1994 Bonds (exclusive of the accrued
interest paid by the initial purchasers of the First Series 1994
Bonds)to be applied exclusively to the foregoing purpose and to
cause such Refunded Bonds to be redeemed within 90 days after the
date of initial issuance of the First Series 1994 Bonds.
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable. In order to evidence the Loan and the obligation of the
Company to repay the same, the Company shall execute and deliver
for each series of Bonds a Note in a principal amount equal to the
aggregate principal amount of, and having the same stated rate or
rates of interest as, such series of Bonds. Each Note shall be
dated the date of the initial issuance of, and mature on the same
maturity date as, the series of Bonds issued concurrently
therewith. If, at the date any payment on the Bonds is due, there
are any available moneys in the Bond Fund, such moneys shall be
credited against the payment then due under the Notes, first in
respect of interest and then, to the extent of remaining moneys,
in respect of principal.
The Company will also pay: (i) the fees, charges and
reasonable expenses of the Trustee and any paying agents under the
Indenture, such fees, charges and reasonable expenses to be paid
directly to the Trustee or paying agents for their respective
accounts as and when such fees, charges and reasonable expenses
become due and payable, (ii) any expenses and costs incurred or to
be incurred by virtue of the issuance of Additional Bonds and
(iii) any expenses in connection with any redemption of the Bonds.
SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make payments as provided in the
Notes and to perform and observe the other agreements on its part
contained herein shall be absolute and unconditional
notwithstanding any change in the tax or other laws of the United
States of America or of the State of Georgia or any political
subdivision of either thereof or any failure of the Issuer to
- 3 -
<PAGE>
perform and observe any agreement, whether express or implied, or
any duty, liability or obligation arising out of or connected with
this Agreement. Nothing contained in this Section 3.3 shall be
construed to release the Issuer from the performance of any of the
agreements on its part herein contained; and, in the event the
Issuer should fail to perform any such agreement on its part, the
Company may institute such action against the Issuer as the
Company may deem necessary to compel performance or recover its
damages for nonperformance so long as such action shall not
violate the agreements on the part of the Company contained in the
preceding sentence, but in no event shall the Company be entitled
to any diminution of the amounts payable under the Notes and as
provided in Section 3.2 hereof.
SECTION 3.4. First Mortgage Bonds. Concurrently with the
Issuer's delivery of each series of Bonds to the Trustee, the
Company will execute and deliver to the Trustee, in order to
secure the Company's obligation under the Note issued concurrently
therewith, First Mortgage Bonds, registered in the name of the
Trustee, equal in principal amount to such series of Bonds and
having the same stated rate or rates of interest and the same
maturity date or dates as such series of Bonds; provided, however,
that if such series of Bonds is issued for the purpose of
refunding all of the Bonds then outstanding, the Company may elect
not to deliver such First Mortgage Bonds.
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Notes, the Agreement and the First Mortgage Bonds. The
Issuer shall assign to the Trustee as security under the Indenture
all rights, title and interests of the Issuer in and to (i) the
Notes and all payments thereunder, (ii) this Agreement and all
moneys receivable hereunder (except for payments under Sections
4.2 and 5.3 hereof) and (iii) the First Mortgage Bonds. The
Company assents to such assignment and hereby agrees that, as to
the Trustee, its obligations to make such payments shall be
absolute and shall not be subject to any defense or any right of
set-off, counterclaim or recoupment arising out of any breach by
the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Company by the Issuer or the
Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer hereby acknowledges
that it shall have no rights to the use or possession of the
Project. The Issuer hereby further acknowledges that the Project
will not constitute any part of the security for the Bonds other
- 4 -
<PAGE>
than any interest in the Company's property shared by all holders
of the Company's first mortgage bonds issued under the First
Mortgage, including the First Mortgage Bonds.
SECTION 4.2. Indemnity Against Claims. The Company will pay
and discharge and will indemnify and hold harmless the Issuer from
(a) any lien or charge upon payments by the Company to the Issuer
under the Notes or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the
Issuer under the Notes or hereunder and (c) any and all liability,
damages, costs and expenses arising out of or resulting from the
transactions contemplated by this Agreement and the Indenture,
including the reasonable fees and expenses of counsel. If any such
lien or charge is sought to be imposed upon payments, or any such
taxes, assessments, impositions or other charges are sought to be
imposed, or any such liability, damages, costs and expenses are
sought to be imposed, the Issuer will give prompt notice to the
Company, and the Company shall have the sole right and duty to
assume, and will assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees
that during the term of this Agreement it will maintain its
corporate existence in Maine and its qualification to do business
in Georgia, will not dissolve or otherwise dispose of all or
substantially all of its assets and will not consolidate with or
merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided, that
the Company may, without violating the agreements contained in
this Section 4.3, consolidate with or merge into another domestic
corporation (i.e., a corporation incorporated and existing under
the laws of one of the states of the United States of America or
under the laws of the United States of America) or permit one or
more other corporations to consolidate with or merge into it, or
sell or otherwise transfer to another domestic corporation all or
substantially all of its assets as an entirety and thereafter
dissolve, provided that, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, the surviving, resulting or transferee corporation assumes,
accepts and agrees in writing to pay and perform all of the
obligations of the Company herein and under the Notes and is a
Georgia corporation or is qualified to do business in Georgia as a
foreign corporation and that such consolidation or merger does not
result in the loss of the exclusion from gross income for federal
income tax purposes of interest on the outstanding Bonds.
SECTION 4.4. Annual Statement. The Company agrees to have an
annual audit made by its regular independent public accountants
and within 180 days after the close of each fiscal year to furnish
the Trustee and any Bondholder who may so request a balance sheet
- 5 -
<PAGE>
and statement of income and surplus showing the financial
condition of the Company and its consolidated subsidiaries, if
any, at the close of such fiscal year and the results of
operations of the Company and its consolidated subsidiaries, if
any, for such fiscal year, accompanied by a certificate or opinion
of said accountants. The requirements of this Section 4.4 may be
satisfied by the submission to the Trustee and each Bondholder who
may request such information of the Company's annual report to its
shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments.
The Issuer and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this
Agreement.
SECTION 4.6. Maintenance of Project by Company. The Company
agrees that during the term of this Agreement it will pay all
costs of operating, maintaining and repairing the Project;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer
shall take all steps then necessary under the applicable
provisions of the Indenture for the redemption or purchase of
Bonds upon receipt by the Issuer and the Trustee from the Company
of a written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase, which date,
in the case of a redemption of Bonds, shall be at least
forty-five (45) days subsequent to the receipt by the Trustee
of such notice; and
(c) in the case of a redemption of Bonds, directions to
mail a notice of redemption.
In the case of a purchase of Bonds, the written notice to the
Trustee shall, if available moneys in the Bond Fund are
insufficient to purchase the principal amount of Bonds specified
in (a) above, be accompanied by a deposit into the Bond Fund of
cash or Government Obligations sufficient, together with other
moneys then available in the Bond Fund, to make the directed
purchase of Bonds.
- 6 -
<PAGE>
SECTION 4.8. Non-Arbitrage Covenant. The Company and the
Issuer each covenants that it shall take no action, nor shall the
Company approve the Trustee's taking any action or making any
investment or use of the proceeds of the Bonds or any other
moneys, which would cause the Bonds to be treated as "arbitrage
bonds" within the meaning of Section 148 of the Internal Revenue
Code of 1986, as amended, and the proposed, temporary or final
regulations thereunder as such may be applicable or proposed to be
applicable to the Bonds at the time of such action, investment or
use. Without limiting the generality of the foregoing, the Company
covenants and agrees to comply with the requirements of Section
148(f) of the Internal Revenue Code of 1986, as amended, and any
proposed, temporary or final regulations thereunder as may be
applicable to the Bonds or the proceeds derived from the sale of
the Bonds or any other moneys.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall
be an "Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the
amounts required to be paid pursuant to the Notes or the
failure by the Company to pay within 30 days of the date
due any amounts required to be paid pursuant to this
Agreement.
(b) Failure by the Company to observe and perform
any covenant, condition or agreement on its part to be
observed or performed hereunder, other than as referred
to in subsection (a) of this Section 5.1, for a period
of 60 days after written notice, specifying such failure
and requesting that it be remedied, is given to the
Company by the Issuer or the Trustee, unless the Issuer
and the Trustee shall agree in writing to an extension
of such period prior to its expiration; provided,
however, if the failure stated in the notice cannot be
corrected within the applicable period, the Issuer and
the Trustee will not unreasonably withhold their consent
to an extension of such period if corrective action is
instituted by the Company within the applicable period
and diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Company,
except as permitted by Section 4.3 hereof, or the
commencement by the Company of any case or proceeding
seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it as bankrupt or
- 7 -
<PAGE>
insolvent or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition,
readjustment of its debts or any other relief under any
bankruptcy, insolvency, reorganization or other similar
law of the United States or any state, or adjudication
of the Company as bankrupt, or an assignment by the
Company for the benefit of its creditors, or the entry
by the Company into an agreement of composition with its
creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in
any proceeding for its reorganization instituted under
the provisions of Title 11 of the United States Code, as
amended, or under any similar statutory provision which
may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the
limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements herein
contained other than those set forth in Sections 4.3 and 4.8
hereof, an Event of Default shall not be deemed to have occurred
during the continuance of such inability. The term "force majeure"
as used herein shall mean the following: acts of God; strikes;
lockouts or other industrial disturbances; acts of public enemies;
orders of any kind of the government of the United States or of
the State of Georgia or any of their departments, agencies or
officials or of any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; tornadoes; storms; floods; washouts; droughts;
arrests; restraints of government and people; civil disturbances;
explosions; breakage or accident to machinery, transmission lines,
pipes or canals; partial or entire failure of utilities; or any
other cause or event not reasonably within the control of the
Company. The Company agrees, however, to remedy to the extent
practicable with all reasonable dispatch the effects of any force
majeure preventing the Company from carrying out its agreements;
provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of
the Company, and the Company shall not be required to make
settlement of strikes, lockouts and other industrial disturbances
by acceding to the demands of the opposing party or parties when
such course is in the judgment of the Company unfavorable to the
Company.
SECTION 5.2. Remedies on Default. Whenever any Event of
Default shall have occurred and be continuing, the Issuer may, in
addition to any other remedy now or hereafter existing at law, in
equity or by statute, take either or both of the following
remedial steps:
(a) By written notice to the Company, the Issuer may
declare all amounts payable pursuant to the Notes to be
- 8 -
<PAGE>
immediately due and payable, whereupon the same shall become
immediately due and payable;
(b) The Issuer may take whatever action at law or in
equity may appear necessary or desirable to collect the
amounts referred to in (a) above then due and thereafter to
become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this
Agreement.
Any amounts collected pursuant to action taken under this Section
5.2 shall be paid into the Bond Fund and applied in accordance
with the provisions of the Indenture or, if the Bonds have been
fully paid (or provision for payment thereof has been made in
accordance with the provisions of the Indenture) and the fees and
expenses of the Trustee and the paying agents and all other
amounts required to be paid under the Indenture shall have been
paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
the Notes or this Agreement and the Issuer should employ attorneys
or incur other expenses for the collection of amounts payable
hereunder or the enforcement of performance or observance of any
obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay
to the Issuer the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In
the event any agreement contained in the Notes or in this
Agreement should be breached by either party and thereafter waived
by the other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the outstanding Bonds shall have been fully paid or
provision made therefor in accordance with the provisions of the
Indenture, whichever shall first occur, and the fees and expenses
of the Trustee and any paying agents and all other amounts payable
by the Company under this Agreement and the Notes shall have been
paid.
- 9 -
<PAGE>
SECTION 6.2. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the Issuer, c/o
Board of Commissioners of Monroe County, Forsyth, Georgia 31029,
Attention: Chairman; if to the Company, at 500 Bayfront Parkway,
Pensacola, Florida 32501, Attention: Treasurer, with copies to
Southern Company Services, Inc., 64 Perimeter Center East,
Atlanta, Georgia 30346, Attention: Corporate Finance Department;
and if to the Trustee, at 214 Hogan Street, 2nd Floor,
Jacksonville, Florida 32202, Attention: Corporate Trust
Department. A duplicate copy of each notice, certificate or other
communication given hereunder by either the Issuer or the Company
to the other shall also be given to the Trustee. The Issuer, the
Company 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 6.3. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Issuer, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
SECTION 6.5. Amounts Remaining in the Bond Fund. Any amounts
remaining in the Bond Fund upon termination of this Agreement
shall, to the extent provided by Section 5.08 of the Indenture,
belong to and be paid to the Company by the Trustee.
SECTION 6.6. Amendments. This Agreement may not be
effectively terminated except in accordance with the provisions
hereof and may not be effectively amended except by a written
agreement in accordance with Article XI of the Indenture and
signed by the parties hereto.
SECTION 6.7. Execution in Counterparts. This Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 6.8. Applicable Law. This Agreement and the Notes
shall be governed by and construed in accordance with the laws of
the State of Georgia.
SECTION 6.9. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
- 10 -
<PAGE>
describe the scope or intent of any provisions or sections of this
Agreement.
SECTION 6.10. Other Financing. Notwithstanding anything in
this Agreement to the contrary, the Issuer and the Company may
hereafter enter into agreements to provide for the financing or
refinancing of costs of the Project or any portion thereof in lieu
of or in addition to the provisions herein for Additional Bonds.
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
[SEAL]
By:
Vice Chairman
ATTEST:
___________________________
Secretary
GULF POWER COMPANY
[SEAL]
By:
Vice President
ATTEST:
___________________________
Assistant Secretary
<PAGE>
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
GULF POWER COMPANY ("Gulf"), a corporation organized and
existing under the laws of the State of Maine, acknowledges itself
indebted and for value received hereby promises to pay to the
order of the Development Authority of Monroe County (the
"Authority"), and its successors and assigns, the principal sum of
___________________ DOLLARS ($________ ) together with interest on
the unpaid principal balance thereof from the date hereof until
Gulf's obligation with respect to the payment of such sum shall be
discharged at the rate borne by the Bonds referred to below. As
additional interest hereon there shall be payable, and Gulf
promises to pay when due, amounts which shall equal the premium,
if any, due on such Bonds in connection with the redemption
thereof.
This Note is issued to evidence a portion of the Loan (as
defined in the Agreement hereinafter referred to) of the Authority
to Gulf and the obligation of Gulf to repay the same and shall be
governed by and be payable in accordance with the terms and
conditions of a loan agreement (the "Agreement") between the
Authority and Gulf dated as of August 15, 1994, pursuant to which
the Authority has loaned to Gulf the proceeds of the sale of the
Authority's $__________ of Pollution Control Revenue Bonds (Gulf
Power Company Plant Scherer Project), ____________ Series
___________ (the "Bonds"). Additional similar Notes may be issued
by Gulf as provided in the Agreement. This Note (together with
the Agreement) has been assigned to First Union National Bank of
Florida (the "Trustee"), acting pursuant to a trust indenture
dated as of August 15, 1994 (the "Indenture") between the
Authority and the Trustee, and may not be assigned by the Trustee
except to a successor Trustee pursuant to the terms of the
Indenture. Such assignment is made as security for the Bonds, and
any other bonds which are or may at any time be issued and
outstanding under the Indenture. The Bonds are dated and bear
interest in accordance with the provisions of the Indenture,
payable on ____________________ and __________________________ in
each year commencing ___________________ at the rate of
____________________ percent (____%) per annum, and mature on
______________________. The Bonds are subject to redemption prior
to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon
are to be made by paying to the Trustee, as assignee of the
Authority, in funds which will be immediately available on the day
payment is due, amounts which, and at or before times which, shall
correspond to the payments with respect to the principal of and
- 13 -
<PAGE>
premium, if any, and interest on the Bonds whenever and in
whatever manner the same shall become due, whether at stated
maturity, upon redemption or declaration or otherwise. If at the
date any payments on the Bonds are due there are any available
moneys in the Bond Fund established under the Indenture, such
moneys shall be credited against the payment then due hereunder,
first in respect of interest and then, to the extent of remaining
moneys, in respect of principal. Upon the occurrence of an Event
of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable
as provided in the Agreement.
Neither the officers of Gulf nor any persons executing this
Note shall be liable personally or shall be subject to any
personal liability or accountability by reason of the issuance
hereof.
IN WITNESS WHEREOF, Gulf Power Company has caused this Note
to be executed in its corporate name and on its behalf by its
President, its Treasurer or a Vice President by his manual
signature, and its corporate seal to be impressed hereon and
attested by the manual signature of its Secretary or an Assistant
Secretary, all as of the date first above written.
GULF POWER COMPANY
[SEAL]
By:____________________________
Attest:________________________
- 14 -
<PAGE>
ASSIGNMENT
Pay to the order of First Union National Bank of Florida, as
assignee of the Development Authority of Monroe County, under the
Trust Indenture, dated as of August 15, 1994, between the
Development Authority of Monroe County and First Union National
Bank of Florida, as Trustee, securing the payment of Development
Authority of Monroe County Pollution Control Revenue Bonds (Gulf
Power Company Plant Scherer Project), _____ Series ____, in the
original principal amount of $___________.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
By:____________________________
<PAGE>
[cao]:wpdocs\gulf\76153\loanag.fxd
<PAGE>
Exhibit B-1(b)
DRAFT
September 13, 1994
DEVELOPMENT AUTHORITY OF MONROE COUNTY
and
GULF POWER COMPANY
LOAN AGREEMENT
Dated as of September 1, 1994
Relating to
$20,000,000
Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project)
Second Series 1994
<PAGE>
LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Loan Agreement)
PAGE
ARTICLE I
DEFINITIONS 1
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project . . . 2
SECTION 2.2. Issuance of the Bonds . . . . . . . . . . . . . 2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer . . . . . . . . . . . . . . . . 2
SECTION 3.2. Delivery of Note by Company; Other Amounts
Payable . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.3. Obligation of the Company Unconditional . . . . 3
SECTION 3.4. First Mortgage Bonds . . . . . . . . . . . . . 3
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Note, the Agreement and the First
Mortgage Bonds . . . . . . . . . . . . . . . . 3
SECTION 3.6. Provision of Credit Agreement. . . . . . . . 4
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project . . . . . . . . . . . . . . . . 4
SECTION 4.2. Indemnity Against Claims . . . . . . . . . . . 4
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted . . 5
SECTION 4.4. Annual Statement . . . . . . . . . . . . . . . 5
SECTION 4.5. Further Assurances and Corrective Instruments . 5
SECTION 4.6. Maintenance of Project by Company . . . . . . . 6
-i-
<PAGE>
SECTION 4.7. Redemption or Purchase of Bonds . . . . . . . . 6
SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . . . 6
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . 7
SECTION 5.2. Remedies on Default . . . . . . . . . . . . . . 8
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses . 9
SECTION 5.4. No Additional Waiver Implied by One Waiver . . 9
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement . . . . . . . . . . . . 9
SECTION 6.2. Notices . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.3. Binding Effect . . . . . . . . . . . . . . . . 9
SECTION 6.4. Severability . . . . . . . . . . . . . . . . . 10
SECTION 6.5. Amendments . . . . . . . . . . . . . . . . . . 10
SECTION 6.6. Execution in Counterparts . . . . . . . . . . . 10
SECTION 6.7. Applicable Law . . . . . . . . . . . . . . . . 10
SECTION 6.8. Captions . . . . . . . . . . . . . . . . . . . 10
SECTION 6.9. Other Financing . . . . . . . . . . . . . . . . 10
-ii-
<PAGE>
LOAN AGREEMENT dated as of September 1, 1994 between the
DEVELOPMENT AUTHORITY OF MONROE COUNTY, a public body corporate
and politic duly organized and existing under the Constitution
and laws of the State of Georgia (the "Issuer"), and GULF POWER
COMPANY, a corporation organized and existing under the laws of
the State of Maine (the "Company"), evidencing the agreement of
the parties hereto.
In consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as
follows (provided that in the performance of the agreements of
the Issuer herein contained, any obligation it may thereby incur
for the payment of money shall not be a general debt, liability
or obligation of the Issuer, or of the State of Georgia or any
political subdivision thereof but shall be payable solely out of
the revenues and proceeds derived from this Agreement and the
Note (as hereinafter defined), the sale of the Bonds referred to
herein and any amounts received from the first mortgage bonds
referred to in Section 3.4 hereof):
ARTICLE I
DEFINITIONS
"Bondholder", "Bonds", "Business Day", "Company Indenture",
"Credit Agreement", "First Mortgage Bonds", "Government
Obligations", "Refunded Bonds", "Remarketing Agent", and
"Trustee" have the same meanings given and assigned to such words
in Article I of the Indenture (as hereinafter defined).
"Plans" and "Project" have the same meanings given and
assigned to such words in Article I of the Original Agreement (as
hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
"Event of Default" means any of the occurrences enumerated
in Section 5.1 of this Agreement.
"Indenture" means the Trust Indenture dated as of
September 1, 1994, relating to Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project), Second Series 1994,
between the Issuer and First Union National Bank of Florida, as
Trustee, pursuant to which the Bonds are authorized to be issued,
and including any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the
Company of the proceeds (which shall be deemed to include the
underwriting discounts, if any, and original issue discount, if
any) of the sale of the Bonds, exclusive of any accrued interest
paid by the initial purchasers of the Bonds upon the delivery
thereof.
<PAGE>
"Note" means the non-negotiable promissory note of the
Company issued pursuant to Section 3.2 hereof, in the form set
forth in Exhibit A hereto.
"Original Agreement" means the Loan Agreement dated as of
December 1, 1984 between the Issuer and the Company, delivered in
connection with the issuance of the Refunded Bonds.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project.
The Company represents that it has caused the acquisition,
construction, installation and equipping of the Project to be
completed substantially in accordance with the Plans.
SECTION 2.2. Issuance of the Bonds. In order to provide
funds for the purpose set forth in Section 3.1 hereof, the Issuer
agrees that it will issue and deliver the Bonds to the purchasers
thereof at a price of par and apply and deposit the proceeds
thereof in accordance with the terms of the Indenture. The
Indenture shall be satisfactory in form and substance to the
Company and shall provide the manner in which, and the purposes
for which, proceeds of Bonds may be used and invested.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to
make the Loan to the Company in order to refund the Refunded
Bonds. The Company hereby agrees to cause the proceeds of the
Bonds to be applied exclusively to such purpose and to cause the
redemption of the Refunded Bonds to be effected within 90 days
after the date of initial issuance of the Bonds.
SECTION 3.2. Delivery of Note by Company; Other Amounts
Payable. In order to evidence the Loan and the obligation of the
Company to repay the same, the Company shall execute and deliver
the Note in a principal amount equal to the aggregate principal
amount of the Bonds and providing for payments which correspond
in time and amount with payments due on the Bonds. The Note
shall be dated the date of the initial authentication of, and
mature on the same maturity date as, the Bonds. If (i) on the
date any payments on the Bonds are due there are any available
moneys on deposit with the Trustee which are not being held for
the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are
required to be purchased pursuant to the Bonds or Article III of
the Indenture, there are available moneys on deposit with the
Trustee held for the payment of the purchase price which are not
-2-
<PAGE>
being held for the payment of Bonds which have not been presented
for payment, then, in each case, such moneys shall be credited
against the payment then due under the Note, first in respect of
interest and then, to the extent of remaining moneys, in respect
of principal.
The Company will also pay: (i) the fees, charges and
reasonable expenses of the Trustee and any paying agents under
the Indenture, such fees, charges and reasonable expenses to be
paid directly to the Trustee or paying agents for their
respective accounts as and when such fees, charges and reasonable
expenses become due and payable, and (ii) any expenses in
connection with any redemption of the Bonds.
SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make payments as provided in the
Note and to perform and observe the other agreements on its part
contained herein shall be absolute and unconditional
notwithstanding any change in the tax or other laws of the United
States of America or of the State of Georgia or any political
subdivision of either thereof or any failure of the Issuer to
perform and observe any agreement, whether express or implied, or
any duty, liability or obligation arising out of or connected
with this Agreement. Nothing contained in this Section 3.3 shall
be construed to release the Issuer from the performance of any of
the agreements on its part herein contained; and, in the event
the Issuer should fail to perform any such agreement on its part,
the Company may institute such action against the Issuer as the
Company may deem necessary to compel performance so long as such
action shall not violate the agreements on the part of the
Company contained in the preceding sentence, but in no event
shall the Company be entitled to any diminution of the amounts
payable under the Note and as provided in Section 3.2 hereof.
SECTION 3.4. First Mortgage Bonds. Concurrently with the
Issuer's delivery of the Bonds to the Trustee, the Company will
execute and deliver to the Trustee, in order to secure the
Company's obligation under the Note issued concurrently
therewith, First Mortgage Bonds, registered in the name of the
Trustee, equal in principal amount to the Bonds and having the
same stated rate or rates of interest and the same maturity date
as the Bonds.
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Note, the Agreement and the First Mortgage Bonds. The
Issuer shall assign to the Trustee as security under the
Indenture all rights, title and interests of the Issuer in and to
(i) the Note and all payments thereunder, (ii) this Agreement and
all moneys receivable hereunder (except for payments under
Sections 4.2 and 5.3 hereof) and (iii) the First Mortgage Bonds.
The Company assents to such assignment and hereby agrees that, as
to the Trustee, its obligations to make such payments shall be
-3-
<PAGE>
absolute and shall not be subject to any defense or any right of
set-off, counterclaim or recoupment arising out of any breach by
the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Company by the Issuer or the
Trustee.
SECTION 3.6. Provision of Credit Agreement. On or before
the date of initial issuance of the Bonds, the Company shall
enter into the Credit Agreement for the purpose of assuring that
the Company will have a source of funds available, if needed, to
perform its obligations under the Note to provide any funds
necessary to purchase Bonds which have been tendered for purchase
but not remarketed. The Company shall be under no obligation to
maintain the Credit Agreement or any similar liquidity agreement
in place during the term of the Bonds. Nonetheless, the Company
hereby agrees to notify the Trustee and the Remarketing Agent in
writing at least 20 Business Days prior to any termination of the
Credit Agreement at the request of the Company.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer hereby
acknowledges that it shall have no rights to the use or
possession of the Project. The Issuer hereby further
acknowledges that the Project will not constitute any part of the
security for the Bonds other than any interest in the Company's
property shared by all holders of the Company's bonds issued
under the Company Indenture, including the First Mortgage Bonds.
SECTION 4.2. Indemnity Against Claims. The Company will
pay and discharge and will indemnify and hold harmless the Issuer
from (a) any lien or charge upon payments by the Company to the
Issuer under the Note or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the
Issuer under the Note or hereunder and (c) any and all liability,
damages, costs and expenses arising out of or resulting from the
transactions contemplated by this Agreement and the Indenture,
including the reasonable fees and expenses of counsel. If any
such lien or charge is sought to be imposed upon payments, or any
such taxes, assessments, impositions or other charges are sought
to be imposed, or any such liability, damages, costs and expenses
are sought to be imposed, the Issuer will give prompt notice to
the Company, and the Company shall have the sole right and duty
to assume, and will assume, the defense thereof, with full power
to litigate, compromise or settle the same in its sole
discretion.
-4-
<PAGE>
SECTION 4.3. The Company to Maintain Its Corporate
Existence; Conditions Under Which Exceptions Permitted. The
Company agrees that during the term of this Agreement it will
maintain its corporate existence in Maine and its qualification
to do business in Georgia, will not dissolve or otherwise dispose
of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one
or more other corporations to consolidate with or merge into it;
provided, that the Company may, without violating the agreements
contained in this Section 4.3, consolidate with or merge into
another domestic corporation (i.e., a corporation incorporated
and existing under the laws of one of the states of the United
States of America or under the laws of the United States of
America) or permit one or more other corporations to consolidate
with or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an
entirety and thereafter dissolve, provided that, in the event the
Company is not the surviving, resulting or transferee
corporation, as the case may be, the surviving, resulting or
transferee corporation assumes, accepts and agrees in writing to
pay and perform all of the obligations of the Company herein and
under the Note and is a Georgia corporation or is qualified to do
business in Georgia as a foreign corporation and that such
consolidation or merger does not result in the loss of the
exclusion from gross income for federal income tax purposes of
interest on the outstanding Bonds.
SECTION 4.4. Annual Statement. The Company agrees to have
an annual audit made by its regular independent public
accountants and within 180 days after the close of each fiscal
year to furnish the Trustee and any Bondholder who may so request
a balance sheet and statement of income and surplus showing the
financial condition of the Company and its consolidated
subsidiaries, if any, at the close of such fiscal year and the
results of operations of the Company and its consolidated
subsidiaries, if any, for such fiscal year, accompanied by a
certificate or opinion of said accountants. The requirements of
this Section 4.4 may be satisfied by the submission to the
Trustee and each Bondholder who may request such information of
the Company's annual report to its shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments.
The Issuer and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of
this Agreement.
SECTION 4.6. Maintenance of Project by Company. The
Company agrees that during the term of this Agreement it will pay
-5-
<PAGE>
all costs of operating, maintaining and repairing the Project;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer
shall take all steps then necessary under the applicable
provisions of the Indenture for the redemption or purchase (other
than a purchase pursuant to tenders as provided in the form of
Bonds or in lieu of redemption as provided in Section 3.07 of the
Indenture) of Bonds upon receipt, not less than ten days prior to
the day on which the Trustee is required to give notice (if any)
thereof pursuant to the Indenture, by the Issuer and the Trustee
from the Company of a written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase; and
(c) in the case of a redemption of Bonds, directions
to mail a notice of redemption.
In the case of a purchase of Bonds, the written notice to the
Trustee shall, if available moneys on deposit with the Trustee
are insufficient to purchase the principal amount of Bonds
specified in (a) above, be accompanied by a deposit with the
Trustee of cash or Government Obligations sufficient, together
with other available moneys on deposit with the Trustee, to make
the directed purchase of Bonds.
SECTION 4.8. Non-Arbitrage Covenant. The Company and the
Issuer each covenants that it shall take no action, nor shall the
Company direct the Trustee's taking any action or making any
investment or use of the proceeds of the Bonds or any other
moneys, which would cause the Bonds to be treated as "arbitrage
bonds" within the meaning of Section 148 of the Internal Revenue
Code of 1986, as amended, and the proposed, temporary or final
regulations thereunder as such may be applicable or proposed to
be applicable to the Bonds at the time of such action, investment
or use.
Without limiting the generality of the foregoing, the
Company covenants and agrees to comply with the requirements of
Section 148(f) of the Internal Revenue Code of 1986, as amended,
and any proposed, temporary or final regulations thereunder as
may be applicable to the Bonds or the proceeds derived from the
sale of the Bonds or any other moneys.
-6-
<PAGE>
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following
shall be an "Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the amounts
required to be paid pursuant to the Note which failure, in
the case of such amounts in respect of interest on any Bond,
continues for five days, or the failure by the Company to
pay within 30 days of the date due any amounts required to
be paid pursuant to this Agreement.
(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be observed
or performed hereunder, other than as referred to in
subsection (a) of this Section 5.1, for a period of 90 days
after written notice, specifying such failure and requesting
that it be remedied, is given to the Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, if the failure stated in the
notice cannot be corrected within the applicable period, the
Issuer and the Trustee will not unreasonably withhold their
consent to an extension of such period if corrective action
is instituted by the Company within the applicable period
and diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Company,
except as permitted by Section 4.3 hereof, or the
commencement by the Company of any case or proceeding
seeking to have an order for relief entered on its behalf as
a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-
up, arrangement, composition, readjustment of its debts or
any other relief under any bankruptcy, insolvency,
reorganization or other similar law of the United States or
any state, or adjudication of the Company as bankrupt, or an
assignment by the Company for the benefit of its creditors,
or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any
proceeding for its reorganization instituted under the
provisions of Title 11 of the United States Code, as
amended, or under any similar statutory provision which may
hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the
limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements herein
contained other than those set forth in Sections 4.3 and 4.8
-7-
<PAGE>
hereof, an Event of Default shall not be deemed to have occurred
during the continuance of such inability. The term "force
majeure" as used herein shall mean the following: acts of God;
strikes; lockouts or other industrial disturbances; acts of
public enemies; orders of any kind of the government of the
United States or of the State of Georgia or any of their
departments, agencies or officials or of any civil or military
authority; insurrections; riots; epidemics; landslides;
lightning; earthquakes; fire; hurricanes; tornadoes; storms;
floods; washouts; droughts; arrests; restraints of government and
people; civil disturbances; explosions; breakage or accident to
machinery, transmission lines, pipes or canals; partial or entire
failure of utilities; or any other cause or event not reasonably
within the control of the Company. The Company agrees, however,
to remedy to the extent practicable with all reasonable dispatch
the effects of any force majeure preventing the Company from
carrying out its agreements; provided that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is in the judgment of
the Company unfavorable to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of
Default shall have occurred and be continuing, the Issuer may, in
addition to any other remedy now or hereafter existing at law, in
equity or by statute, take either or both of the following
remedial steps:
(a) By written notice to the Company, the Issuer may
declare all amounts payable pursuant to the Note to be
immediately due and payable, whereupon the same shall become
immediately due and payable;
(b) The Issuer may take whatever action at law or in
equity may appear necessary or desirable to collect the
amounts referred to in (a) above then due and thereafter to
become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this
Agreement.
Any amounts collected pursuant to action taken under this Section
5.2 shall be deposited with the Trustee and applied in accordance
with the provisions of the Indenture or, if the Bonds have been
fully paid (or provision for payment thereof has been made in
accordance with the provisions of the Indenture) and the fees and
expenses of the Trustee and the paying agents and all other
amounts required to be paid under the Indenture shall have been
paid, to the Company.
-8-
<PAGE>
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
the Note or this Agreement and the Issuer should employ attorneys
or incur other expenses for the collection of amounts payable
hereunder or the enforcement of performance or observance of any
obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay
to the Issuer the reasonable fees of such attorneys and such
other reasonable expenses so incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver.
In the event any agreement contained in the Note or in this
Agreement should be breached by either party and thereafter
waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the outstanding Bonds shall have been fully paid
or provision made therefor in accordance with the provisions of
the Indenture, whichever shall first occur, and the fees and
expenses of the Trustee and any paying agents and all other
amounts payable by the Company under this Agreement and the Note
shall have been paid.
SECTION 6.2. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the Issuer,
c/o Board of Commissioners of Monroe County, Forsyth, Georgia
31029; if to the Company, at 500 Bayfront Parkway, Pensacola,
Florida 32501, Attention: Treasurer, with copies to Southern
Company Services, Inc., 64 Perimeter Center East, Atlanta,
Georgia 30346, Attention: Corporate Finance Department; and if to
the Trustee, at 214 Hogan Street, 2nd Floor, Jacksonville,
Florida 32202, Attention: Corporate Trust Department. A
duplicate copy of each notice, certificate or other communication
given hereunder by either the Issuer or the Company to the other
shall also be given to the Trustee. The Issuer, the Company 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 6.3. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Issuer, the Company
-9-
<PAGE>
and their respective successors and assigns, subject, however, to
the limitations contained in Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
SECTION 6.5. Amendments. This Agreement may not be
effectively terminated except in accordance with the provisions
hereof and may not be effectively amended except by a written
agreement in accordance with Article XI of the Indenture and
signed by the parties hereto.
SECTION 6.6. Execution in Counterparts. This Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 6.7. Applicable Law. This Agreement and the Note
shall be governed by and construed in accordance with the laws of
the State of Georgia.
SECTION 6.8. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Agreement.
SECTION 6.9. Other Financing. Notwithstanding anything in
this Agreement to the contrary, the Issuer and the Company may
hereafter enter into agreements to provide for the financing or
refinancing of costs of the Project or any portion thereof.
-10-
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
[SEAL] By:
Vice Chairman
ATTEST:
Secretary
GULF POWER COMPANY
[SEAL] By:
Vice President
ATTEST:
Assistant Secretary
<PAGE>
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
GULF POWER COMPANY ("Gulf"), a corporation organized and
existing under the laws of the State of Maine, acknowledges
itself indebted and for value received hereby promises to pay to
the order of the Development Authority of Monroe County (the
"Authority"), and its successors and assigns, the principal sum
of TWENTY MILLION DOLLARS ($20,000,000) together with interest on
the unpaid principal balance thereof from the date hereof until
Gulf's obligations with respect to the payment of such sum shall
be discharged at the rate or rates borne by the Bonds referred to
below. As additional interest hereon there shall be payable, and
Gulf promises to pay when due, amounts which shall equal the
premium, if any, due on such Bonds in connection with the
redemption thereof. Gulf further promises to pay the purchase
price of such Bonds as hereinbelow provided.
This Note is issued to evidence the Loan (as defined in the
Agreement hereinafter referred to) of the Authority to Gulf and
the obligation of Gulf to repay the same and shall be governed by
and be payable in accordance with the terms and conditions of a
loan agreement (the "Agreement") between the Authority and Gulf
dated as of September 1, 1994, pursuant to which the Authority
has loaned to Gulf the proceeds of the sale of the Authority's
$20,000,000 of Pollution Control Revenue Bonds (Gulf Power
Company Plant Scherer Project), Second Series 1994 (the "Bonds").
This Note (together with the Agreement) has been assigned to
First Union National Bank of Florida (the "Trustee"), acting
pursuant to a trust indenture dated as of September 1, 1994 (the
"Indenture") between the Authority and the Trustee, and may not
be assigned by the Trustee except to a successor Trustee pursuant
to the terms of the Indenture. Such assignment is made as
security for the Bonds. The Bonds are dated and bear interest in
accordance with the provisions of the Indenture, and mature on
September 1, 2024. The Bonds are subject to redemption prior to
maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon
are to be made by paying to the Trustee, as assignee of the
Authority, in funds which will be immediately available on the
day payment is due, amounts which, and at or before times which,
shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in
whatever manner the same shall become due, whether at stated
maturity, upon redemption or declaration or otherwise, and the
purchase price of Bonds required to be purchased under the
Indenture. If (i) on the date any payments on the Bonds are due
<PAGE>
there are any available moneys on deposit with the Trustee which
are not being held for the payment of Bonds due and payable but
which have not been presented for payment, or (ii) on any date on
which Bonds are required to be purchased pursuant to the Bonds or
Article III of the Indenture, there are available moneys on
deposit with the Trustee held for the payment of the purchase
price which are not being held for the payment of Bonds which
have not been presented for payment, then, in each case, such
moneys shall be credited against the payment then due hereunder,
first in respect of interest and then, to the extent of remaining
moneys, in respect of principal. Upon the occurrence of an Event
of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable
as provided in the Agreement.
Neither the officers of Gulf nor any persons executing this
Note shall be liable personally or shall be subject to any
personal liability or accountability by reason of the issuance
hereof.
<PAGE>
IN WITNESS WHEREOF, Gulf Power Company has caused this Note
to be executed in its corporate name and on its behalf by its
President, its Treasurer or a Vice President by his manual
signature, and its corporate seal to be impressed hereon and
attested by the manual signature of its Secretary or an Assistant
Secretary, all as of the date first above written.
GULF POWER COMPANY
By:
Attest:
<PAGE>
ASSIGNMENT
Pay to the order of First Union National Bank of Florida, as
assignee of the Development Authority of Monroe County under the
Trust Indenture, dated as of September 1, 1994, between the
Development Authority of Monroe County and First Union National
Bank of Florida, as Trustee, securing the payment of Development
Authority of Monroe County (Georgia) Pollution Control Revenue
Bonds (Gulf Power Company Plant Scherer Project), Second Series
1994, in the original principal amount of $20,000,000.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By:
Vice Chairman
[Hartlatj] H:\wpdocs\71570\76152\LoanAgt.1
<PAGE>
Exhibit B-2(a)
DRAFT
September 6, 1994
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
to
FIRST UNION NATIONAL BANK OF FLORIDA,
Trustee
TRUST INDENTURE
Dated as of August 15, 1994
Relating to Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project)
First Series 1994
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience
of reference only and is not a part
of this Trust Indenture)
Page
PARTIES ............................................ 1
RECITALS ........................................... 1
Form of Bond ................................... 2
Form of Trustee's Certificate of
Authentication ................................ 9
Form of Validation Certificate ................. 9
GRANTING CLAUSE .................................... 10
HABENDUM CLAUSE .................................... 11
ARTICLE I
DEFINITIONS 12
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds . . . . . . . 13
SECTION 2.02. Issuance of Bonds . . . . . . . . . . . 13
SECTION 2.03. Form of Bonds. . . . . . . . . . . . . . 14
SECTION 2.04. Details, Execution and Payment. . . . . 14
SECTION 2.05. Authentication, Registration, Exchange,
Transfer and Ownership of Bonds . . . . 16
SECTION 2.06. Delivery of First Series 1994 Bonds;
Application of Proceeds. . . . . . . . . 17
SECTION 2.07. Temporary Bonds . . . . . . . . . . . . 18
SECTION 2.08. Mutilated, Destroyed or Lost Bonds . . . 19
SECTION 2.09. Destruction of Bonds . . . . . . . . . . 19
SECTION 2.10. Additional Bonds . . . . . . . . . . . . 19
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices . . . . . . 21
SECTION 3.02. Notice of Redemption . . . . . . . . . . 22
SECTION 3.03. Effect of Call for Redemption . . . . . 22
SECTION 3.04. Partial Redemption . . . . . . . . . . . 23
-i-
<PAGE>
Page
SECTION 3.05. Funds in Trust; Unclaimed Funds . . . . 23
SECTION 3.06. Special Redemption . . . . . . . . . . . 23
SECTION 3.07. Surrender of First Mortgage Bonds . . . 24
SECTION 3.08. Satisfaction of First Mortgage Bonds . . 25
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal and Premium,
If Any, and Interest; Limited
Obligation . . . . . . . . . . . . . . . 25
SECTION 4.02. Performance of Covenants; Issuer . . . . 25
SECTION 4.03. Instruments of Further Assurance . . . . 26
SECTION 4.04. Recordation . . . . . . . . . . . . . . 26
SECTION 4.05. Inspection of Project Books . . . . . . 26
SECTION 4.06. Rights Under Agreement . . . . . . . . . 26
SECTION 4.07. Designation of Additional Paying Agents 27
SECTION 4.08. Existence of Issuer . . . . . . . . . . 27
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds . . . . . . . 27
SECTION 5.02. Creation of Bond Fund . . . . . . . . . 27
SECTION 5.03. Payments into the Bond Fund . . . . . . 27
SECTION 5.04. Use of Moneys in the Bond Fund . . . . . 28
SECTION 5.05. Custody of the Bond Fund . . . . . . . . 29
SECTION 5.06. Non-presentment of Bonds . . . . . . . . 29
SECTION 5.07. Moneys to Be Held in Trust . . . . . . . 29
SECTION 5.08. Repayment to the Company from the
Bond Fund . . . . . . . . . . . . . . . 29
SECTION 5.09. Creation of Redemption Fund. . . . . . . 30
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Bond Fund and
Redemption Fund Moneys . . . . . . . . . 30
SECTION 6.02. Permitted Investments . . . . . . . . . 30
SECTION 6.03. Non-Arbitrage Covenant . . . . . . . . . 31
ARTICLE VII
RELEASE OF LIEN
SECTION 7.01. Release of Lien . . . . . . . . . . . . 32
-ii-
<PAGE>
Page
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default . . . . . . . . . . . 33
SECTION 8.02. Acceleration . . . . . . . . . . . . . . 33
SECTION 8.03. Other Remedies . . . . . . . . . . . . . 34
SECTION 8.04. Legal Proceedings by Trustee . . . . . . 34
SECTION 8.05. Right of Bondholders to Direct
Proceedings . . . . . . . . . . . . . . 35
SECTION 8.06. Appointment of Receivers . . . . . . . . 35
SECTION 8.07. Waiver . . . . . . . . . . . . . . . . . 35
SECTION 8.08. Application of Moneys . . . . . . . . . 36
SECTION 8.09. Remedies Vested in Trustee . . . . . . . 37
SECTION 8.10. Rights and Remedies of Bondholders . . . 38
SECTION 8.11. Termination of Proceedings . . . . . . . 39
SECTION 8.12. Waivers of Events of Default . . . . . . 39
SECTION 8.13. Notice of Default under Section 8.01(c);
Opportunity of Issuer and the Company to
Cure Such Default . . . . . . . . . . . 39
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts . . . . . . . . 40
SECTION 9.02. Fees, Charges and Expenses of Trustee . 43
SECTION 9.03. Notice to Bondholders if an Event of
Default Occurs . . . . . . . . . . . . . 44
SECTION 9.04. Intervention by Trustee . . . . . . . . 44
SECTION 9.05. Successor Trustee . . . . . . . . . . . 44
SECTION 9.06. Resignation by Trustee . . . . . . . . . 44
SECTION 9.07. Removal of Trustee . . . . . . . . . . . 44
SECTION 9.08. Appointment of Successor Trustee . . . . 45
SECTION 9.09. Concerning Any Successor Trustee . . . . 45
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying
Agent . . . . . . . . . . . . . . . . . 46
SECTION 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company . . . 46
SECTION 9.12. No Transfer of Notes or First Mortgage
Bonds Held by the Trustee; Exception . . 46
SECTION 9.13. Filing of Certain Continuation
Statements . . . . . . . . . . . . . . . 47
SECTION 9.14. Voting of First Mortgage Bonds Held by
the Trustee . . . . . . . . . . . . . . 47
-iii-
<PAGE>
Page
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders . . . . . . . . 48
SECTION 10.02. Supplemental Indentures Requiring
Consent of Bondholders . . . . . . . . 49
SECTION 10.03. Trustee Authorized to Join in
Supplements; Reliance on Counsel . . . 50
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders . . . 51
SECTION 11.02. Amendments, Etc., to Agreement
Requiring Consent of Bondholders . . . 51
SECTION 11.03. Trustee Authorized to Join in
Amendments; Reliance on Counsel . . . . 51
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, Etc., of Bondholders . . . . 52
SECTION 12.02. Limitation of Rights . . . . . . . . . 52
SECTION 12.03. Severability . . . . . . . . . . . . . 52
SECTION 12.04. Notices . . . . . . . . . . . . . . . . 52
SECTION 12.05. Trustee as Paying Agent and Bond
Registrar . . . . . . . . . . . . . . . 53
SECTION 12.06. Payments Due on Saturdays, Sundays and
Holidays . . . . . . . . . . . . . . . 53
SECTION 12.07. Counterparts . . . . . . . . . . . . . 53
SECTION 12.08. Applicable Provisions of Law . . . . . 53
SECTION 12.09. Captions . . . . . . . . . . . . . . . 54
SECTION 12.10. No Liability of Officers . . . . . . . 54
-iv-
<PAGE>
THIS INDENTURE made and entered into as of August 15,
1994, by and between the DEVELOPMENT AUTHORITY OF MONROE
COUNTY, a public body corporate and politic duly organized
and existing under the Constitution and laws of the State
of Georgia (the "Issuer"), and FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association duly organized,
existing and authorized to accept and execute trusts of the
character herein set out under and by virtue of the laws of
the United States of America, with its principal corporate
trust office located in Jacksonville, Florida, as Trustee
(the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the
Issuer has entered into a Loan Agreement dated as of
August 15, 1994 (the "Agreement") with Gulf Power Company
(the "Company") providing for the undertaking by the Issuer
to loan amounts to the Company in order, inter alia, to
refund certain of the Issuer's bonds heretofore issued to
finance the acquisition, construction, installation and
equipping of the Company's interest in certain pollution
control and sewage and solid waste disposal facilities, or
portions thereof, at Plant Scherer, in Monroe County,
Georgia (the "Project").
B. The Agreement provides that, for the purposes
therein set forth, the Issuer will issue and sell its
Pollution Control Revenue Bonds (Gulf Power Company Plant
Scherer Project) in one or more series (the "Bonds"); that
the Issuer will loan the proceeds of the Bonds to the
Company; that to evidence the Loan (as hereinafter defined)
the Company will execute and deliver, concurrently with the
issuance of each series of Bonds, a non-negotiable
promissory note in a like principal amount bearing interest
at the rate borne by such series of Bonds; and that as
security for its obligation to pay the promissory notes the
Company will deliver to the Trustee, concurrently with the
issuance of each series of Bonds, first mortgage bonds
issued under and secured by the Company's First Mortgage
(as hereinafter defined) in accordance with, and except as
otherwise provided in, Section 3.4 of the Agreement.
C. The execution and delivery of this Indenture (as
hereinafter defined) and the Agreement have been in all
respects duly and validly authorized by resolution duly
adopted by the Issuer.
D. In order to provide funds for the purpose set
forth in the Agreement, the Issuer has duly authorized the
-1-
<PAGE>
issuance and sale of its Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project), First Series
1994, in the aggregate principal amount of $22,000,000 (the
"First Series 1994 Bonds").
E. The First Series 1994 Bonds are to be in
substantially the following form:
[FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF GEORGIA
DEVELOPMENT AUTHORITY
OF MONROE COUNTY (GEORGIA)
POLLUTION CONTROL REVENUE BOND
(Gulf Power Company Plant Scherer Project)
First Series 1994
Development Authority of Monroe County (herein called
the "Issuer"), a public body corporate and politic, duly
created, activated and existing under the laws of the State
of Georgia, for value received, hereby promises to pay,
solely from the special fund provided therefor as
hereinafter set forth, to , or registered
assigns or legal representative, on the 1st day of
September, 2024 (or earlier as hereinafter referred to),
upon the presentation and surrender hereof at the principal
corporate trust office of the Trustee (hereinafter
mentioned) located in Jacksonville, Florida, the principal
sum of DOLLARS in any coin or currency of the
United States of America which on the date of payment
thereof is legal tender for the payment of public and
private debts, and to pay, solely from said special fund,
to the registered owner hereof by check or draft mailed to
the registered owner at his address as it appears on the
bond registration books of the Issuer, interest on said
principal sum from the latest semiannual interest payment
date to which interest has been paid on Bonds of this
series preceding the date hereof, unless the date hereof be
an interest payment date to which interest is being paid,
in which case from the date hereof, or unless the date
hereof is prior to March 1, 1995, in which case from
August 15, 1994, at the rate of six and thirty hundredths
per centum (6.30%) per annum until payment of said
principal sum, such interest being payable semiannually on
the 1st days of March and September in each year in like
-2-
<PAGE>
coin or currency. Interest shall be calculated on the
basis of a year of 360 days and twelve 30-day months.
The interest payable on any March 1 or September 1
will, subject to certain exceptions provided in the
Indenture (hereinafter mentioned), be paid to the person in
whose name this Bond is registered at the close of business
on the record date, which shall be the February 15 or
August 15, as the case may be, next preceding such interest
payment date or, if such February 15 or August 15 shall be
a legal holiday or a day on which banking institutions in
Jacksonville, Florida, are authorized to close, the next
preceding day which shall not be a legal holiday or a day
on which such institutions are so authorized to close.
The Bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Georgia,
particularly the Development Authorities Law (O.C.G.A.
Section 36-62-1, et seq., as amended), and pursuant to a
resolution adopted by the Issuer on August 31, 1994, which
resolution authorizes the execution and delivery of the
Agreement (hereinafter mentioned) and the Indenture. The
Bonds and the interest thereon are limited special
obligations of the Issuer and are payable solely from the
special fund hereinafter referred to out of the revenues
and other amounts derived from the Agreement, the Notes and
the first mortgage bonds (hereinafter mentioned) and are
secured as set forth in the Indenture. The Bonds and
premium, if any, and interest thereon shall not be deemed
to constitute a debt or general obligation or a pledge of
the faith and credit of the State of Georgia or any
political subdivision thereof, including the County of
Monroe. Neither the State of Georgia nor any political
subdivision thereof nor the Issuer shall be obligated to
pay the principal of the Bonds or premium, if any, or
interest thereon or other costs incident thereto except
from the revenues and receipts pledged therefor, and
neither the faith and credit nor the taxing power of the
State of Georgia or any political subdivision thereof is
pledged to the payment of the principal of the Bonds or
premium, if any, or interest thereon or other costs
incident thereto. Payments under the Notes sufficient for
the prompt payment when due of the principal of and
premium, if any, and interest on the Bonds are to be paid
to the Trustee by the Company (hereinafter mentioned) for
the account of the Issuer and deposited in a special
account created by the Issuer and designated "Development
Authority of Monroe County (Georgia) Pollution Control
Revenue Bonds (Gulf Power Company Plant Scherer Project)
First Series 1994 Bond Fund" (herein called the "Bond
Fund") and have been duly pledged and assigned for that
-3-
<PAGE>
purpose. In addition, substantially all other rights of
the Issuer under the Agreement, including the Company's
obligation to deliver to the Trustee concurrently with the
issuance of this series of Bonds the Company's first
mortgage bonds, have also been assigned to the Trustee to
secure payment of the principal of and premium, if any, and
interest on the Bonds issued under the Indenture.
This Bond is one of a duly authorized series of revenue
bonds of the Issuer known as "Pollution Control Revenue
Bonds (Gulf Power Company Plant Scherer Project), First
Series 1994", issued for the purpose of refunding certain
of the Issuer's bonds heretofore issued to finance the cost
of acquiring, constructing, installing and equipping
certain pollution control and sewage and solid waste
disposal facilities (herein called the "Project"). The
Bonds of this series initially authorized aggregate Twenty-
two Million Dollars ($22,000,000) in principal amount. The
Indenture provides that additional series of Bonds may be
issued under the Indenture for the purpose of refunding any
of the Bonds then outstanding of any series.
The Bonds of this series and all such additional Bonds
(herein called collectively the "Bonds") are issued or are
to be issued under and pursuant to a trust indenture (said
trust indenture, together with all trust indentures
supplemental thereto as therein permitted, being herein
called the "Indenture"), dated as of the 15th day of
August, 1994, by and between the Issuer and First Union
National Bank of Florida, Jacksonville, Florida, as Trustee
(said banking association and any successor trustee under
the Indenture being herein called the "Trustee"), an
executed counterpart of which Indenture is on file at the
principal corporate trust office of the Trustee. Reference
is hereby made to the Indenture for the provisions, among
others, with respect to the custody and application of the
proceeds of Bonds issued under the Indenture, the
collection and disposition of revenues, a description of
the funds charged with and pledged to the payment of the
principal of and premium, if any, and interest on the
Bonds, the nature and extent of the security, the terms and
conditions under which the Bonds are or may be issued, the
rights, duties and obligations of the Issuer and of the
Trustee, the rights of the holders of the Bonds and the
terms and conditions pursuant to which the Indenture and
the Agreement may be amended, and, by the acceptance of
this Bond, the holder hereof assents to all of the
provisions of the Indenture.
The Issuer has entered into a Loan Agreement, dated as
of August 15, 1994 (herein called the "Agreement"), with
-4-
<PAGE>
Gulf Power Company, a corporation organized and existing
under the laws of the State of Maine (herein called the
"Company"), under the provisions of which the Issuer has
loaned the proceeds of the Bonds of this series to the
Company and has agreed to loan the proceeds of additional
Bonds to the Company (herein called the "Loan"). In order
to evidence the Loan and the Company's obligation to repay
the same, the Company has executed and delivered its non-
negotiable promissory note and has agreed to issue
additional such notes concurrently with the issuance of
additional series of Bonds (herein called the "Notes").
The Notes provide for the repayment by the Company of the
Loan, including interest thereon, in installments
sufficient to pay the principal of and premium, if any, and
interest on the Bonds as the same shall become due and
payable, and the Agreement further obligates the Company to
pay the cost of operating, maintaining and repairing the
Project. The Notes provide that the payments thereunder
shall be paid directly to the Trustee as assignee of the
Issuer; such payments are to be deposited to the credit of
the Bond Fund created under the Indenture which special
fund is pledged to and charged with the payment of the
principal of and premium, if any, and interest on all Bonds
issued under the Indenture and such Loan repayments have
been duly pledged and assigned for that purpose.
The Bonds are issuable as fully registered Bonds
without coupons in denominations of $5,000 or any multiple
thereof. At the principal corporate trust office of the
Trustee, located in Jacksonville, Florida, in the manner
and subject to the limitations, conditions and charges
provided in the Indenture, Bonds may be exchanged for an
equal aggregate principal amount of Bonds of the same
series and maturity, of authorized denominations and
bearing interest at the same rate.
The Bonds of this series are non-callable for
redemption prior to September 1, 1999, except in the event
the Trustee and the Issuer shall have received written
notice from the Company of its determination of the
occurrence of certain events specified in Section 3.06 of
the Indenture. If called for redemption in such event, the
Bonds of this series shall be subject to redemption at any
time in whole at the principal amount thereof plus accrued
interest to the redemption date but without premium.
The Bonds of this series are also subject to redemption
by the Issuer prior to maturity on or after September 1,
1999, in whole at any time or in part from time to time
(but if in part by lot or in such other random manner as
the Trustee in its discretion may determine), at the
-5-
<PAGE>
redemption prices (expressed as percentages of principal
amount) set forth in the table below plus accrued interest
to the redemption date.
Redemption Date Redemption
(dates inclusive) Price
September 1, 1999 to August 31, 2000 . . . 102%
September 1, 2000 to August 31, 2001 . . . 101%
September 1, 2001 and thereafter . . . . . 100%
Any such redemption, either in whole or in part, shall
be made upon at least thirty (30) days' prior notice as
provided in the Indenture, and shall be made in the manner
and under the terms and conditions provided in the
Indenture. On the date designated for redemption, notice
having been given and moneys for payment of the redemption
price and accrued interest being held by the Trustee or by
the paying agents, all as provided in the Indenture, the
Bonds or portions of Bonds so called for redemption shall
become and be due and payable at the redemption price
provided for redemption of such Bonds or such portions
thereof on such date, interest on such Bonds or such
portions thereof so called for redemption shall cease to
accrue, such Bonds or such portions thereof so called for
redemption 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 and accrued
interest thereon so held by the Trustee or by the paying
agents. If a portion of this Bond shall be called for
redemption, a new registered Bond in principal amount equal
to the unredeemed portion hereof will be issued to the
registered owner upon the surrender hereof.
The holder of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with
respect to any event of default under the Indenture or to
institute, appear in or defend any suit or other proceeding
with respect thereto, except 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 then outstanding under the Indenture may
become or may be declared due and payable before the stated
maturity thereof, together with the interest accrued
thereon.
-6-
<PAGE>
Modifications or alterations of the Indenture or any
trust indenture supplemental thereto or of the Agreement
may be made only to the extent and in the circumstances
permitted by the Indenture.
The transfer of this Bond may be registered by the
registered owner hereof in person or by his attorney or
legal representative at the principal corporate trust
office of the Trustee, located in Jacksonville, Florida,
but only in the manner and subject to the limitations and
conditions provided in the Indenture and upon surrender and
cancellation of this Bond. Upon any such registration of
transfer the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange for this Bond a new
Bond or Bonds, registered in the name of the transferee, of
authorized denominations, in aggregate principal amount
equal to the principal amount of this Bond, of the same
series and maturity and bearing interest at the same rate.
No covenant or agreement contained in this Bond or the
Indenture shall be deemed to be a covenant or agreement of
any member, agent or employee of the Issuer in his
individual capacity, and neither the officers of the Issuer
nor any official executing this Bond shall be liable
personally on this Bond or be subject to any personal
liability or accountability by reason of the issuance of
this Bond.
This Bond shall be fully negotiable as an investment
security as provided by the laws of the State of Georgia
and is issued with the intent that the laws of the State of
Georgia shall govern its construction.
All acts, conditions and things required to happen,
exist and be performed precedent to and in the issuance of
this Bond and the execution of the Indenture have happened,
exist and have been performed as so required.
This Bond shall not be valid or become obligatory for
any purpose or be entitled to any benefit or security under
the Indenture until it shall have been authenticated by the
execution by the Trustee of the certificate of
authentication endorsed hereon.
-7-
<PAGE>
IN WITNESS WHEREOF, the Development Authority of Monroe
County has caused this Bond to be executed in its name and
on its behalf by the facsimile signature of its Chairman or
Vice Chairman and its official seal or a facsimile thereof
to be impressed or printed hereon and attested by the
manual or facsimile signature of its Secretary or Assistant
Secretary.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By:
-8-
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated
therein and issued under the provisions of the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK
OF FLORIDA,
as Trustee
Date: ____________________ By:
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be endorsed on all Bonds)
STATE OF GEORGIA SS:
COUNTY OF MONROE
The undersigned, Clerk of the Superior Court of Monroe
County, Georgia, hereby certifies that the within First
Series 1994 Bond was validated and confirmed by judgment of
the Superior Court of Monroe County, Georgia rendered on
the ____ day of September, 1994, that no intervention or
objection was filed thereto and that no appeal has been
taken therefrom.
IN WITNESS WHEREOF, I have caused this Certificate to
be executed by the use of my facsimile signature and have
caused the official seal of the Court or a facsimile
thereof to be affixed hereto.
Clerk, Superior Court,
Monroe County, Georgia
-9-
<PAGE>
F. 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 execution
and delivery of this Indenture and the Agreement have
happened, exist and have been performed as so required, in
order to make this Indenture a valid and binding trust
indenture for the security of the Bonds in accordance with
its terms and in order to make the Agreement a valid and
binding loan agreement in accordance with its terms.
G. The Trustee has accepted the trusts created by
this Indenture and in evidence thereof has joined in the
execution hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the
Trustee of the trusts hereby created, and the purchase and
acceptance of the Bonds by the holders thereof, and also
for and in consideration of the sum of One Dollar ($1.00)
to the Issuer in hand paid by the Trustee at or before the
execution and delivery of this Indenture, the receipt of
which is hereby acknowledged, and for the purpose of fixing
and declaring the terms and conditions upon which the Bonds
are to be issued, authenticated, delivered, secured and
accepted by all persons who shall from time to time be or
become holders thereof, and in order to secure the payment
of all Bonds at any time issued and outstanding hereunder
and the interest and the redemption premiums, if any,
thereon according to their tenor, purport and effect, and
in order to secure the performance and observance of all
the covenants, agreements and conditions therein or herein
contained; the Issuer has executed and delivered this
Indenture, will cause the Company to deliver to the Trustee
the Company's promissory note dated the date of the initial
issuance of the First Series 1994 Bonds and the Company's
First Mortgage Bonds, 6.30% Pollution Control Series due
September 1, 2024, and will cause the Company to deliver
any other of its promissory notes and First Mortgage Bonds
required in connection with the issuance of Additional
Bonds (as hereinafter defined); the Issuer does hereby
bargain, sell, convey, assign and pledge to the Trustee,
and grant to the Trustee a security interest in, all
rights, title and interests of the Issuer in, to and under
such promissory note and all payments made and to be made
thereunder and in, to and under such First Mortgage Bonds
and all payments, if any, made and to be made thereunder as
security for the payment of all outstanding First Series
1994 Bonds and any Additional Bonds and the interest and
the premium, if any, thereon and does hereby bargain, sell,
convey, assign and pledge to the Trustee, and grant to the
Trustee a security interest in, all other rights, title and
-10-
<PAGE>
interests of the Issuer in, to and under the Agreement and
all moneys receivable thereunder (except for payments to be
received under Sections 4.2 and 5.3 of the Agreement) as
security for the satisfaction of any other obligation
assumed by it in connection with all outstanding Bonds at
any time issued hereunder;
TO HAVE AND TO HOLD the same unto the Trustee and its
successors in trust forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth, for the equal and proportionate benefit and
security of all and singular present and future holders of
the Bonds issued and to be issued under this Indenture,
without preference, priority or distinction as to lien or
otherwise, except as otherwise hereinafter provided, of any
one Bond over any other Bond, by reason of priority in the
issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Issuer, its successors
or assigns shall pay or cause to be paid the principal of,
premium, if any, and interest on the Bonds due or to become
due thereon, at the times and in the manner mentioned in
the Bonds, and shall cause the payments to be made into the
Bond Fund (hereinafter defined) as required under Article V
hereof or shall provide, as permitted hereby, for the
payment thereof pursuant to the provisions of Article VII
hereof, and shall perform all the covenants and conditions
required of it by this Indenture, and shall pay or cause to
be paid to the Trustee and any additional paying agents all
sums of money due or to become due to them in accordance
with the terms and provisions hereof, then upon such final
payments this Indenture and the rights hereby granted shall
terminate and the Trustee shall release this Indenture and
shall execute such documents to evidence such termination
and release as may be reasonably required by the Issuer;
otherwise this Indenture to be and remain in full force and
effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and
secured hereunder are to be issued, authenticated and
delivered, and all said property, rights and interests,
including, without limitation, the amounts hereby assigned
and pledged, are to be dealt with and disposed of subject
to the terms of this Indenture, and the Issuer agrees with
the Trustee and with the respective owners, from time to
time, of said Bonds, or part thereof, as follows:
-11-
<PAGE>
ARTICLE I
DEFINITIONS
The terms "Agreement", "Company" and "Issuer" have the
same meanings given and assigned to such words in the
Recitals hereto. The terms "First Mortgage", "First
Mortgage Bonds", "First Series 1994 Bonds", "Loan",
"Notes", "Project" and "Refunded Bonds" defined in
Article I of the Agreement shall have the same meanings in
this Indenture. In addition, the following words and
phrases shall have the following meanings:
"Act" means the Development Authorities Law as set
forth in the Official Code of Ga. Ann. Section 36-62-1, et
seq., as amended.
"Additional Bonds" means the bonds authorized to be
issued under Section 2.10 of this Indenture.
"Bond Fund" means the trust fund created by
Section 5.02 of this Indenture.
"Bondholder" or "holder" or "owner of the Bonds" means
the person or entity in whose name any Bond is registered.
"Bonds" means the bonds authorized to be issued under
Sections 2.02 and 2.10 of this Indenture.
"event of default" means any occurrence or event
described in Section 8.01 hereof.
"First Mortgage Trustee" means the trustee at the time
serving as such under the First Mortgage.
"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 premium, if any, and
interest on which is fully and unconditionally guaranteed
as a full faith and credit obligation by the United States
of America.
"Indenture" means this trust indenture and any
indenture supplemental hereto.
-12-
<PAGE>
"outstanding" or "Bonds outstanding" means all Bonds
which have been authenticated and delivered by the Trustee
under this Indenture, except:
(a) Bonds cancelled after purchase or because of
payment at or redemption prior to maturity;
(b) Bonds for the payment or redemption of which
all necessary moneys or Government Obligations shall
have been theretofore deposited with the Trustee
(whether upon or prior to the maturity or redemption
date of any such Bonds); provided that, if such Bonds
are to be redeemed prior to the maturity thereof,
notice of such redemption 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 exchange for which, or upon the
transfer of which, other Bonds have been authenticated
under Section 2.05 hereof; and
(d) Bonds in lieu of which other Bonds have been
authenticated under Sections 2.07 and 2.08 hereof.
"Redemption Fund" means the trust fund created by
Section 5.09 of this Indenture.
"Supplemental Indenture" means the Supplemental
Indenture dated as of August 15, 1994 between the Company
and the First Mortgage Trustee.
"Trustee" means the trustee serving as such under this
Indenture, including any successor Trustee serving or
appointed pursuant to Section 9.05 or 9.08 hereof.
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No bonds
may be issued under the provisions of this Indenture except
in accordance with this Article II.
SECTION 2.02. Issuance of Bonds. There shall be
initially issued under and secured by this Indenture Bonds
of the Issuer, in the aggregate principal amount of Twenty-
two Million Dollars ($22,000,000), for the purposes set
forth in the Agreement. Said Bonds shall be designated
-13-
<PAGE>
"Development Authority of Monroe County (Georgia) Pollution
Control Revenue Bonds (Gulf Power Company Plant Scherer
Project), First Series 1994", shall bear interest
(calculated on the basis of a year of 360 days and twelve
30-day months) at the rate of six and thirty hundredths per
centum (6.30%) per annum, which interest shall be payable
semi-annually on the 1st days of March and September in
each year, commencing March 1, 1995, and shall mature,
subject to prior redemption as hereinafter set forth, on
the 1st day of August, 2024.
SECTION 2.03. Form of Bonds. The definitive Bonds are
issuable as fully registered Bonds without coupons in
denominations of $5,000 or any multiple thereof. The
definitive Bonds shall be substantially in the form
hereinabove set forth, with such appropriate variations,
omissions and insertions as are permitted or required by
this Indenture and may have endorsed thereon such legends
or text as may be necessary or appropriate to conform to
any applicable rules and regulations of any governmental
authority or any usage or requirement of law with respect
thereto.
SECTION 2.04. Details, Execution and Payment. Each
Bond of each series shall be dated as of the date of
authentication 1994 upon initial issuance), and shall bear
interest from the latest semi-annual interest payment date
to which interest has been paid on the Bonds of such series
preceding the date of authentication, unless such date of
authentication be an interest payment date to which
interest is being paid on the Bonds of such series, in
which case it shall bear interest from such date of
authentication, provided that Bonds of each series
authenticated prior to the first interest payment date of
such series shall bear interest from a date prior to such
interest payment date specified for such series, which
date, in the case of the First Series 1994 Bonds, shall be
August 15, 1994.
The Bonds shall be executed by the facsimile signature
of the Chairman or Vice Chairman of the Issuer and the
official seal of the Issuer or a facsimile thereof shall be
affixed thereto and attested by the manual or facsimile
signature of the Secretary or Assistant Secretary of the
Issuer.
All authorized facsimile signatures shall have the same
force and effect as manual signatures.
In case any officer whose signature or facsimile
signature shall appear on any Bonds shall cease to be such
-14-
<PAGE>
officer before the delivery of such Bonds, such signature
or such facsimile shall nevertheless be valid and
sufficient for all purposes as if he had remained in office
until such delivery, and also any Bond may be signed by or
bear the facsimile signature of such persons as at the
actual time of the execution of such Bond shall be the
proper officers to sign such Bond although at the date of
such Bond such persons may not have been such officers.
The principal of and premium, if any, and interest on
the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of
payment thereof is legal tender for the payment of public
and private debts. The principal of and premium, if any,
on all Bonds shall be payable at the principal corporate
trust office of the Trustee, and payment of the interest on
each Bond shall be made by the Trustee on each interest
payment date to the person appearing on the registration
books of the Issuer hereinafter provided for as the owner
thereof at the close of business on the record date with
respect to such interest payment date, by check or draft
mailed to such owner at his address as it appears on such
registration books. Payment of the principal of and
premium, if any, on all Bonds shall be made upon the
presentation and surrender of such Bonds as the same shall
become due and payable.
The person in whose name any First Series 1994 Bond is
registered at the close of business on any record date (as
hereinafter defined) with respect to any interest payment
date shall be entitled to receive the interest payable on
such interest payment date notwithstanding the cancellation
of such First Series 1994 Bond upon any transfer or
exchange thereof subsequent to the record date and prior to
such interest payment date, except if and to the extent
there shall be a default in the payment of the interest due
on such interest payment date, in which case such defaulted
interest shall be paid to the person in whose name such
First Series 1994 Bond (or any First Series 1994 Bond or
Bonds issued, directly or after intermediate transactions,
upon transfer or exchange or in substitution thereof) is
registered on a subsequent record date for such payment
established as hereinafter provided. A subsequent record
date may be established by the Issuer at the direction of
the Company by notice mailed to the holders of the First
Series 1994 Bonds not less than ten days preceding such
record date, which record date shall not be less than five
nor more than thirty days prior to the subsequent interest
payment date. The term "record date" as used in this
Section 2.04 with respect to any regular interest payment
date shall mean the February 15 or August 15, as the case
-15-
<PAGE>
may be, next preceding such interest payment date, or, if
such February 15 or August 15 shall be a legal holiday or a
day on which banking institutions in Jacksonville, Florida
are authorized by law to close, the next preceding day
which shall not be a legal holiday or a day on which such
institutions are so authorized to close.
SECTION 2.05. Authentication, Registration, Exchange,
Transfer and Ownership of Bonds. Only such of the Bonds as
shall have endorsed thereon a certificate of authentication
substantially in the form hereinabove set forth, duly
executed by the Trustee, shall be entitled to any benefit
or security 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 certificate of the Trustee upon
any such Bond shall be conclusive evidence that such Bond
has been duly authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on
any Bond shall be deemed to have been duly executed if
signed by an authorized representative of the Trustee, but
it shall not be necessary that the same person sign the
certificate of authentication on all of the Bonds that may
be issued hereunder at any one time.
Bonds, upon surrender thereof at the principal
corporate trust office of the Trustee, may, at the option
of the owner thereof, be exchanged for an equal aggregate
principal amount of Bonds of the same series and maturity,
of any denomination or denominations authorized by this
Indenture, and bearing interest at the same rate.
The Issuer shall make provision for the exchange of
Bonds at the principal corporate trust office of the
Trustee.
The Trustee is hereby appointed as Bond Registrar and
as such shall keep books for the registration and for the
registration of transfer of Bonds as provided in this
Indenture.
The transfer of any Bond may be registered only upon
the books kept for the registration and registration of
transfer of Bonds upon surrender thereof to the Bond
Registrar together with an assignment duly executed by the
owner or his attorney or legal representative in such form
as shall be satisfactory to the Bond Registrar. Upon any
such registration of transfer the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange for
such Bond a new Bond or Bonds, registered in the name of
the transferee, of any denomination or denominations
-16-
<PAGE>
authorized by this Indenture in an aggregate principal
amount equal to the principal amount of such Bond of the
same series and maturity and bearing interest at the same
rate.
In all cases in which Bonds shall be exchanged or the
transfer of Bonds shall be registered hereunder, the Issuer
shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time Bonds in
accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchange or registration of
transfer shall forthwith be cancelled by the Trustee. The
Issuer or the Trustee may make a charge for every such
exchange or registration of transfer of Bonds sufficient to
reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such exchange or
registration of transfer, and such charge shall be paid
before any such new Bonds shall be delivered.
As to any Bond, the person in whose name the same shall
be registered shall be deemed and regarded as the absolute
owner thereof for all purposes, and payment of or on
account of the principal of or interest on any such Bond
shall be made only to or upon the order of the owner
thereof or his legal representative. All such payments
shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon,
to the extent of the sum or sums so paid. Neither the
Issuer, the Trustee, the Company nor the Bond Registrar
shall be affected by any notice to the contrary.
SECTION 2.06. Delivery of First Series 1994 Bonds;
Application of Proceeds. Upon the execution and delivery
of this Indenture, the Issuer shall execute and deliver to
the Trustee and the Trustee shall authenticate the First
Series 1994 Bonds and deliver them to the purchasers
thereof as directed by the Issuer as hereinafter in this
Section 2.06 provided.
Prior to the delivery by the Trustee of any First
Series 1994 Bonds, there shall be delivered to the Trustee:
(i) A copy, certified by the Secretary or
Assistant Secretary of the Issuer, of the resolutions
adopted by the Issuer authorizing the Loan, authorizing
the execution and delivery of the Agreement, and
authorizing the execution and delivery of this
Indenture and the issuance of the First Series 1994
Bonds.
(ii) An executed counterpart of the Agreement.
-17-
<PAGE>
(iii) A request and authorization to the Trustee
on behalf of the Issuer, signed by the Chairman or Vice
Chairman of the Issuer, to authenticate and deliver the
First Series 1994 Bonds to the purchasers therein
identified upon payment to the Trustee, but for the
account of the Issuer, of a sum specified in such
request and authorization.
(iv) A Note duly executed.
(v) An executed counterpart of the Supplemental
Indenture.
(vi) First Mortgage Bonds duly executed and
authenticated in accordance with Section 3.4 of the
Agreement.
Upon the issuance and delivery of the First Series 1994
Bonds, the Trustee shall apply the proceeds from the sale
of the First Series 1994 Bonds as follows:
(a) The accrued interest (if any) received from
the sale of the First Series 1994 Bonds shall be
deposited in the Bond Fund; and
(b) The balance of such proceeds shall be
deposited in the Redemption Fund.
SECTION 2.07. Temporary Bonds. Until definitive Bonds
are ready for delivery, there may be executed, and upon
request of the Issuer the Trustee shall authenticate and
deliver, in lieu of definitive Bonds and subject to the
same limitations and conditions, temporary printed,
engraved, lithographed or typewritten Bonds, in the form of
registered Bonds without coupons in the denomination of
$5,000 or any multiple thereof, as the Issuer by resolution
may provide, substantially of the tenor hereinabove set
forth and with such appropriate omissions, insertions and
variations as may be required.
Until definitive Bonds are ready for delivery, any
temporary Bond may, if so provided by the Issuer by
resolution, be exchanged at the principal corporate trust
office of the Trustee, without charge to the holder
thereof, for an equal aggregate principal amount of
temporary Bonds of like tenor, of the same series and
maturity and bearing interest at the same rate.
If temporary Bonds shall be issued, the Issuer shall
cause the definitive Bonds to be prepared and to be
executed and delivered to the Trustee, and the Trustee,
-18-
<PAGE>
upon presentation to it at its principal corporate trust
office of any temporary Bond, shall cancel the same and
authenticate and deliver in exchange therefor at the
principal corporate trust office of the Trustee, without
charge to the holder thereof, a definitive Bond or Bonds of
an equal aggregate principal amount, of the same maturity
and bearing interest at the same rate as the temporary Bond
surrendered. Until so exchanged the temporary Bonds shall
in all respects be entitled to the same benefit and
security of this Indenture as the definitive Bonds to be
issued and authenticated hereunder.
SECTION 2.08. Mutilated, Destroyed or Lost Bonds. In
case any Bond secured hereby shall become mutilated or be
destroyed or lost, the Issuer shall cause to be executed,
and the Trustee shall authenticate and deliver, a new Bond
of like date and tenor in exchange and substitution for and
upon the cancellation of such mutilated Bond, or in lieu of
and in substitution for such Bond destroyed or lost, upon
the holder's paying the reasonable expenses and charges of
the Issuer and the Trustee in connection therewith and, in
the case of a Bond destroyed or lost, his filing with the
Trustee evidence satisfactory to it and to the Issuer that
such Bond was destroyed or lost, and of his ownership
thereof, and furnishing the Issuer and the Trustee
indemnity satisfactory to them.
SECTION 2.09. Destruction of Bonds. All Bonds paid,
redeemed or purchased, either at or before maturity, shall
be cancelled upon the payment, redemption or purchase of
such Bonds and shall be delivered to the Trustee when such
payment, redemption or purchase is made. All Bonds
cancelled under any of the provisions of this Indenture
shall be destroyed, in accordance with applicable law, by
the Trustee, which shall execute a certificate in
triplicate describing the Bonds so destroyed, and one
executed certificate shall be filed with the Issuer and one
with the Company and the other executed certificate shall
be retained by the Trustee.
SECTION 2.10. Additional Bonds. Additional Bonds may
be issued under and secured by this Indenture at one time
or from time to time, in addition to the First Series 1994
Bonds and, subject to the conditions hereinafter provided
in this Section 2.10, for the purpose of providing funds
for refunding any of the Bonds then outstanding of any
series, including the payment of any redemption premium
thereon, interest to accrue to the selected redemption
date, any serial maturities to become due prior to the
selected redemption date and any expenses in connection
with such refunding. Before any Additional Bonds shall be
-19-
<PAGE>
issued under the provisions of this Section 2.10, the
Issuer shall adopt a resolution authorizing the issuance of
such Additional Bonds, fixing the amount thereof and
describing in brief and general terms the purpose or
purposes for which such Additional Bonds are being issued.
Such Additional Bonds shall be dated, shall be designated,
shall be stated to mature on such date and in such year or
years, shall bear interest at such rate or rates not
exceeding the maximum rate then permitted by law, and may
be made redeemable at such time and prices (subject to the
provisions of Article III of this Indenture), as all may be
provided by the resolution authorizing the issuance of such
Additional Bonds. Except as to any difference in the date,
the maturity or maturities, the rate or rates of interest
or the provisions for redemption by sinking fund or
otherwise, such Additional Bonds shall be on a parity with
and shall be entitled to the same benefit and security of
this Indenture as the First Series 1994 Bonds.
Such Additional Bonds shall be executed substantially
in the form and manner hereinabove set forth and shall be
deposited with the Trustee for authentication, but before
such Additional Bonds shall be authenticated and delivered
by the Trustee, there shall be delivered to the Trustee the
following:
(a) a copy, certified by the Secretary or
Assistant Secretary of the Issuer, of the resolution
adopted by the Issuer authorizing the issuance of such
Additional Bonds in the amount specified therein and
providing for the application of the proceeds;
(b) a certificate stating that the Company has
approved the issuance of such Additional Bonds,
including the terms, manner of issuance, purchase price
and disposition of the proceeds thereof, and the terms
and conditions of any supplement to this Indenture
entered into in connection with such Additional Bonds;
(c) an executed counterpart of any amendment to
the Agreement;
(d) an opinion of nationally recognized counsel
experienced on the subject of municipal bonds and
acceptable to the Trustee that the issuance of such
Additional Bonds and the application of the proceeds of
such Additional Bonds to the purpose or purposes
described in the resolution mentioned in clause (a) of
this Section 2.10 will not result in the interest on
any Bonds theretofore issued under this Indenture and
then outstanding or any portion thereof becoming
-20-
<PAGE>
included in gross income for federal income tax
purposes, except as to any such Bond held by a
"substantial user" of the Project or a "related person"
within the meaning of the Internal Revenue Code of
1986, as amended, and that the interest on such
Additional Bonds will be so excluded from gross income
for federal income tax purposes;
(e) a Note duly executed;
(f) First Mortgage Bonds duly executed and
authenticated in accordance with Section 3.4 of the
Agreement; provided, however, that if such Additional
Bonds are issued for the purpose of refunding all of
the Bonds then outstanding, the Company may elect not
to deliver First Mortgage Bonds; and
(g) if First Mortgage Bonds are to be delivered,
an executed counterpart of a supplemental indenture to
the First Mortgage providing for the issuance of such
First Mortgage Bonds.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices. The First
Series 1994 Bonds are non-callable for redemption except as
provided in this Section 3.01.
The Bonds are subject to redemption by the Issuer, upon
request of the Company under Section 4.7 of the Agreement,
pursuant to the special redemption provisions of Section
3.06 hereof at the times specified in the notice given by
the Issuer as provided in Section 3.06 hereof at the
principal amount thereof plus accrued interest to the
redemption date but without premium.
The First Series 1994 Bonds are subject to redemption
by the Issuer prior to maturity on or after September 1,
1999, in whole at any time or in part from time to time, as
requested by the Company pursuant to Section 4.7 of the
Agreement, at the redemption prices (expressed as
percentages of principal amount) set forth in the table
below plus accrued interest to the redemption date:
-21-
<PAGE>
Redemption Date Redemption
(dates inclusive) Price
September 1, 1999 to August 31, 2000 102%
September 1, 2000 to August 31, 2001 101
September 1, 2001 and thereafter 100
If less than all of the Bonds of a series shall be
called for redemption, the particular Bonds or portions of
Bonds to be redeemed shall be selected by the Trustee by
lot or in such other random manner as the Trustee in its
discretion may determine.
SECTION 3.02. Notice of Redemption. At least thirty
(30) days before the redemption date of any Bonds, either
in whole or in part, the Trustee shall cause a notice of
any such redemption to be mailed, postage prepaid, to all
owners of Bonds to be redeemed in whole or in part at their
addresses as they appear on the registration books
hereinabove provided for. In addition, simultaneously with
the mailing of such notice of redemption, the Trustee shall
mail a copy of such notice by Certified Mail, return
receipt requested (or transmit the same by overnight
delivery service), to The Depository Trust Company, its
successors or assigns and any similar institutional
depository of securities which shall be the registered
owner of any of the Bonds to be redeemed. Each such notice
shall set forth the date fixed for redemption, the
redemption price to be paid and, if less than all of the
Bonds then outstanding shall be called for redemption, the
distinctive numbers and letters, if any, of such Bonds to
be redeemed and, in the case of Bonds to be redeemed in
part only, the portion of the principal amount thereof to
be redeemed. In case any Bond is to be redeemed in part
only, the notice of redemption which relates to such Bond
shall state also that on or after the redemption date, upon
surrender of such Bond, a new Bond in principal amount
equal to the unredeemed portion of such Bond will be
issued. Failure to mail any notice of redemption, or any
defect in any such notice, shall not affect the proceeding
for redemption as to any owner of Bonds to whom proper
notice is mailed.
SECTION 3.03. Effect of Call for Redemption. On the
date so designated for redemption, notice having been given
in the manner and under the conditions hereinabove
provided, the Bonds or portions of Bonds so called for
redemption shall become and be due and payable at the
redemption price provided for redemption for such Bonds or
portions of Bonds on such date, and moneys for payment of
the redemption price and accrued interest to the redemption
-22-
<PAGE>
date being held by the Trustee in a separate account in the
Bond Fund in trust for the holders of the Bonds or portions
thereof to be redeemed, all as provided in this Indenture,
interest on the Bonds or portions of Bonds so called for
redemption shall cease to accrue, such Bonds or portions of
Bonds shall cease to be entitled to any benefit or security
under this Indenture, and the holder of such Bonds or
portions of Bonds shall have no rights in respect thereof
except to receive payment of the redemption price thereof
and accrued interest to the redemption date.
SECTION 3.04. Partial Redemption. In case part but
not all of an outstanding Bond shall be selected for
redemption, the owner thereof or his attorney or legal
representative shall present and surrender such Bond to the
Trustee for payment of the principal amount thereof so
called for redemption, and the Issuer shall execute and the
Trustee shall authenticate and deliver to or upon the order
of such owner or his attorney or legal representative,
without charge therefor, for the unredeemed portion of the
principal amount of the Bond so surrendered, a Bond of the
same series and maturity and bearing interest at the same
rate.
SECTION 3.05. Funds in Trust; Unclaimed Funds. All
moneys which the Trustee shall have withdrawn from the Bond
Fund or shall have received from any other source and set
aside, or deposited with the paying agents, for the purpose
of paying any of the Bonds hereby secured, either at the
maturity thereof or upon call for redemption, shall be held
in trust for the respective holders of such Bonds. But any
moneys which shall be so set aside or deposited by the
Trustee and which shall remain unclaimed by the holders of
such Bonds for a period of six (6) years after the date on
which such Bonds shall have become due and payable shall
upon request in writing be paid to the Company or to such
officer, board or body as may then be entitled by law to
receive the same, and thereafter the holders of such Bonds
shall look only to the Company or to such officer, board or
body, as the case may be, for payment and then only to the
extent of the amount so received without any interest
thereon, and the Trustee, the Issuer and the paying agents
shall have no responsibility with respect to such moneys.
SECTION 3.06. Special Redemption. The Bonds are
subject to redemption in whole at any time upon receipt by
the Trustee and the Issuer of a written notice from the
Company stating that the Company has determined that:
(i) Any federal, state or local body exercising
governmental or judicial authority has taken any action
-23-
<PAGE>
which results in the imposition of unreasonable burdens
or excessive liabilities with respect to the Project,
or the Company's portion of the plant in connection
with which the Project is used, rendering impracticable
or uneconomical the operation of either, including,
without limitation, the condemnation or taking by
eminent domain of all or substantially all of the
Project or such portion of the plant; or
(ii) Changes in the economic availability of raw
materials, operating supplies or facilities or
technological or other changes have made the continued
operation of such plant as an efficient generating
facility uneconomical; or
(iii) The Project or such plant has been damaged
or destroyed to such an extent that it is not
practicable or desirable to rebuild, repair or restore
the Project or such plant.
If the Issuer shall have received such notice by the
Company, the Issuer, upon request of the Company, shall
give written notice to the Trustee directing the Trustee to
take all action necessary to redeem the outstanding Bonds
in whole and on a date specified in such notice, which date
shall be not less than forty-five (45) nor more than ninety
(90) days from the date the notice is received by the
Trustee.
SECTION 3.07. Surrender of First Mortgage Bonds. Upon
receipt by the Trustee of cash or Government Obligations
(non-callable by the issuer thereof) for deposit into the
Bond Fund which, together with other moneys then available
in the Bond Fund, are sufficient to pay, purchase or redeem
all or any part of the Bonds then outstanding in accordance
with the terms of this Indenture or on direction by the
Company that moneys in the Bond Fund be so applied, the
Trustee shall surrender to the Company First Mortgage Bonds
of the series pledged hereunder in connection with the
initial delivery by the Trustee of, and of the same
maturity as, the Bonds so to be paid, purchased or redeemed
in a principal amount equal to, but not exceeding, the
principal amount of the Bonds so to be paid, purchased or
redeemed. For the purposes of this Section 3.07, delivery
to or acquisition by the Trustee of Bonds for cancellation
(other than in connection with a permitted exchange or
registration of transfer of ownership) shall be deemed to
constitute receipt by the Trustee of moneys sufficient to
pay, purchase or redeem the Bonds so delivered.
-24-
<PAGE>
SECTION 3.08. Satisfaction of First Mortgage Bonds.
The Issuer and the Trustee agree that the obligations of
the Company to make payments with respect to the principal
of and premium, if any, and interest on the First Mortgage
Bonds pledged hereunder in connection with the initial
delivery of the First Series 1994 Bonds shall be satisfied
and discharged to the extent and as provided in the first
paragraph of Section 2 of the Supplemental Indenture. The
Trustee shall give the notice provided for in such Section
within ten (10) days after a payment of principal of or
premium, if any, or interest on the First Series 1994 Bonds
shall not have been made when due and there are not
sufficient available funds in the Bond Fund to make such
payment.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal and Premium, If
Any, and Interest; Limited Obligation. The Issuer
covenants that it will promptly pay the principal of and
premium, if any, and interest on every Bond issued under
this Indenture at the place, on the dates and in the manner
provided herein and in said Bonds according to the true
intent and meaning thereof, but only from the revenues and
receipts specifically pledged herein for such purposes.
Neither the State of Georgia, nor any political subdivision
thereof (including Monroe County) shall be obligated to pay
the principal of the Bonds, or the premium, if any, or
interest thereon or other costs incidental thereto, the
same being payable solely from the revenues and receipts
hereinabove referred to. Neither the faith and credit nor
the taxing power of the State of Georgia or any political
subdivision thereof (including Monroe County) is pledged to
the payment of the principal of the Bonds, or the premium,
if any, or interest thereon, or the other costs incidental
thereto.
SECTION 4.02. Performance of Covenants; Issuer. The
Issuer covenants that it will faithfully perform at all
times any and all covenants, undertakings, stipulations and
provisions contained in this Indenture, in any and every
Bond executed, authenticated and delivered hereunder and in
all of its proceedings pertaining hereto. The Issuer
covenants that it is duly authorized under the Constitution
and laws of the State of Georgia, including particularly
and without limitation the Act, to issue the First Series
1994 Bonds authorized hereby and to execute this Indenture,
to assign and pledge the Notes and the Agreement and the
-25-
<PAGE>
amounts payable under the Notes and the First Mortgage
Bonds, and to pledge the amounts hereby pledged in the
manner and to the extent herein set forth; that all action
on its part necessary for the issuance of the First Series
1994 Bonds and the execution and delivery of this Indenture
has been duly and effectively taken; and that the First
Series 1994 Bonds in the hands of the owners thereof are
and will be valid and enforceable obligations of the Issuer
according to the terms thereof and hereof.
SECTION 4.03. Instruments of Further Assurance. The
Issuer covenants that, at the direction and expense of the
Company, 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 pledging and assigning unto the
Trustee all and singular the rights to payments under the
Notes and the First Mortgage Bonds and any other income and
other moneys pledged hereby to the payment of the principal
of and premium, if any, and interest on the Bonds. The
Issuer further covenants that it will not create or suffer
to be created any lien, encumbrance or charge upon its
interest in the Notes, the First Mortgage Bonds or the
Agreement, if any, except the lien of this Indenture.
SECTION 4.04. Recordation. The Issuer covenants that,
at the direction and expense of the Company, it will cause
all instruments as may be necessary to perfect and preserve
the security interest created by this Indenture to be
recorded or filed in such manner and in such places as may
be required by law.
SECTION 4.05. Inspection of Project Books. The Issuer
covenants and agrees that all books and documents in its
possession relating to the Project shall at all times be
open to inspection by the Trustee and its duly authorized
agents.
SECTION 4.06. Rights Under Agreement. The Agreement,
a duly executed counterpart of which has been filed with
the Trustee, sets forth the covenants and obligations of
the Issuer and the Company, and reference is hereby made to
the same for a detailed statement of said covenants and
obligations of the Company thereunder; and the Issuer
agrees that the Trustee in its own name or in the name of
the Issuer may enforce all rights of the Issuer and all
obligations of the Company under and pursuant to the
Agreement for and on behalf of the Bondholders, whether or
not the Issuer is in default hereunder.
-26-
<PAGE>
SECTION 4.07. Designation of Additional Paying Agents.
The Issuer may cause, with the consent of the Company, the
necessary arrangements to be made through the Trustee and
to be thereafter continued for the designation of
additional paying agents and for providing for the payment
of such of the Bonds as shall be presented when due at the
corporate trust office of the Trustee, or its successor in
trust hereunder, or at the principal office of said
additional paying agents. All such funds held by said
additional paying agents shall be held by each of them in
trust and shall constitute a part of the trust estate and
shall be subject to the security interest created hereby.
SECTION 4.08. Existence of Issuer. The Issuer
covenants that it will at all times maintain its corporate
existence and will duly procure any necessary renewals and
extensions thereof; will use its best efforts to maintain,
preserve and renew all the rights, powers, privileges and
franchises owned by it; and will comply with all valid
acts, rules, regulations and orders of any legislative,
executive, judicial or administrative body applicable to
the Project.
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds. The Bonds
authenticated and delivered hereunder are the obligations
of the Issuer and the Issuer shall make payments hereunder
in respect of the principal of and premium, if any, and
interest on such Bonds. Such Bonds are not general
obligations of the Issuer but are limited obligations
payable solely from revenues and proceeds derived from the
Notes, the Agreement and the First Mortgage Bonds and as
authorized by the Act and provided herein.
SECTION 5.02. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be
designated "Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Gulf Power
Company Plant Scherer Project) First Series 1994 Bond
Fund". Moneys deposited therein shall be used to pay the
principal of and premium, if any, and interest on the Bonds
as provided in this Indenture.
SECTION 5.03. Payments into the Bond Fund. There
shall be deposited into the Bond Fund that portion of the
proceeds from the sale of the First Series 1994 Bonds
consisting of accrued interest on the First Series 1994
-27-
<PAGE>
Bonds up to the date of their delivery. In addition, there
shall be deposited into the Bond Fund, as and when
received, (i) all repayments of the Loan and interest
thereon made pursuant to the Notes; (ii) all other moneys
received by the Trustee under and pursuant to any of the
provisions of the Agreement or the Notes which are
required, or which are accompanied by directions from the
Company that such moneys are, to be paid into the Bond
Fund; and (iii) all payments, if any, made to the Trustee
as holder of First Mortgage Bonds. The Issuer hereby
covenants and agrees that, so long as any of the First
Series 1994 Bonds are outstanding, it will deposit, or
cause to be paid to the Trustee for deposit in the Bond
Fund for its account, sufficient sums from revenues derived
pursuant to the Notes promptly to meet and pay the
principal of and premium, if any, and interest on the First
Series 1994 Bonds as the same become due and payable;
provided, however, that nothing herein shall be construed
as requiring the Issuer to use any funds or revenues from
any source other than revenues derived pursuant to the
Agreement, the Notes or the First Mortgage Bonds. The
Trustee is authorized to receive at any time payments or
prepayments from the Company pursuant to the Notes for
deposit in the Bond Fund.
SECTION 5.04. Use of Moneys in the Bond Fund. All
interest accruing on the First Series 1994 Bonds up to the
date of their initial delivery will be paid from the
amounts deposited in the Bond Fund pursuant to the first
sentence of Section 5.03 hereof. Except as provided in
this Indenture, moneys in the Bond Fund shall be used
solely for the payment of the principal of and premium, if
any, and interest on the Bonds. Upon receipt of a written
notice from the Company pursuant to Section 4.7 of the
Agreement and, in the case of a directed purchase of Bonds,
upon the deposit of cash or Government Obligations in the
Bond Fund sufficient, together with other amounts available
therefor in the Bond Fund, to make the directed purchase of
Bonds, the Issuer and the Trustee covenant and agree to
take and cause to be taken the necessary steps to redeem or
purchase such principal amount of Bonds as specified by the
Company in such written notice; provided, however, that any
available moneys in the Bond Fund may be used on direction
of the Company to redeem a part of the Bonds outstanding
and then redeemable or to purchase Bonds for cancellation
so long as the Company is not in default with respect to
any payments required pursuant to the Notes and to the
extent said moneys are in excess of the amount required for
payment of the Bonds theretofore matured or called for
redemption and interest accrued and payable in respect of
outstanding Bonds.
-28-
<PAGE>
SECTION 5.05. Custody of the Bond Fund. The Bond Fund
shall be in the custody of the Trustee but in the name of
the Issuer, and the Issuer hereby authorizes and directs
the Trustee to withdraw sufficient funds from the Bond Fund
to pay the principal of and premium, if any, and interest
on the Bonds as the same become due and payable and to make
said funds so withdrawn available to the paying agents
hereunder at their principal office, for the purpose of
paying said principal and premium, if any, and interest,
which authorization and direction the Trustee hereby
accepts.
SECTION 5.06. Non-presentment of Bonds. In the event
any Bond shall not be presented for payment when the
principal thereof becomes due, either at maturity or at the
date fixed for redemption thereof, if funds sufficient to
pay such Bond shall have been deposited in the Bond Fund or
otherwise made available to the Trustee through deposit
therein as provided in Section 5.03, all liability of the
Issuer to the holder thereof for the payment of such Bond
shall forthwith cease, terminate and be completely
discharged, and thereupon it shall be the duty of the
Trustee to hold such funds within a separate account in the
Bond Fund, subject to the provisions of Section 3.05
hereof, without liability for interest thereon, for the
benefit of the holder of such Bond, which shall thereafter
(subject to the provisions of Section 3.05 hereof) be
restricted exclusively to such funds for any claim of
whatever nature on his part under this Indenture or on, or
with respect to, said Bond.
SECTION 5.07. Moneys to Be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for
the account of the Bond Fund under any provision of this
Indenture shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the
redemption of Bonds, notice of redemption of which has been
duly given, shall, while held by the Trustee, constitute
part of the trust estate and be subject to the security
interest created hereby.
SECTION 5.08. Repayment to the Company from the Bond
Fund. Any amounts remaining in the Bond Fund (other than
moneys, if any, set aside as provided in Sections 3.03,
3.05, 5.06 and 7.01 hereof), after payment in full of the
Bonds (or provision for payment thereof having been made in
accordance with this Indenture), the fees and expenses of
the Trustee and any additional paying agent and all other
amounts required to be paid hereunder, shall be repaid to
the Company as provided in Section 6.5 of the Agreement.
-29-
<PAGE>
SECTION 5.09. Creation of Redemption Fund. There is
hereby created and established with the Trustee a trust
fund to be designated "Development Authority of Monroe
County (Georgia) Pollution Control Revenue Bonds (Gulf
Power Company Plant Scherer Project), First Series 1994
Redemption Fund". There shall be deposited in the
Redemption Fund that portion of the proceeds from the sale
of the First Series 1994 Bonds specified in Section 2.06
hereof. All moneys in the Redemption Fund shall, on such
date or dates as may be directed by the Company (but in any
event not later than 90 days after the date of the initial
issuance of the First Series 1994 Bonds), be paid over to
the trustee under the trust indenture pursuant to which the
Refunded Bonds were issued and secured, and shall be
applied to the redemption of the Refunded Bonds.
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Bond Fund and Redemption
Fund Moneys. Any moneys held in the Bond Fund or the
Redemption Fund shall be invested and reinvested by the
Trustee, at the request of, and as directed by, the Company
in the obligations specified in Section 6.02 hereof. Any
such investments shall be held by or under the control of
the Trustee and shall be deemed at all times to be a part
of the Bond Fund or the Redemption Fund, as the case may
be, and the interest accruing thereon and any profit
realized from such investments shall be credited to the
respective Fund and any loss resulting from such
investments shall be charged to the respective Fund. The
Trustee may make any and all investments through its own
bond or securities department or the bond or securities
department of any affiliate of the Trustee. The Trustee,
upon direction of the Company, shall sell and reduce to
cash a sufficient amount of such investments of Bond Fund
moneys whenever the cash balance in the Bond Fund is
insufficient to pay the principal of or premium, if any, or
interest on the Bonds when due.
SECTION 6.02. Permitted Investments. Except as
otherwise provided herein, any moneys held in the Bond Fund
or the Redemption Fund shall be invested and reinvested by
the Trustee, at the request of, and as directed by, the
Company, in
(a) Government Obligations;
(b) Bonds and notes of the Federal Land Bank;
-30-
<PAGE>
(c) Obligations of the Federal Intermediate Credit
Bank;
(d) Obligations of the Federal Bank for Cooperatives;
(e) Bonds and notes of Federal Home Loan Banks;
(f) Negotiable or non-negotiable certificates of
deposit, time deposits or similar banking arrangements,
issued by a bank or trust company (which may be the
commercial banking department of the Trustee or any bank or
trust company under common control with the Trustee) or
savings and loan association which are insured by the
Federal Deposit Insurance Corporation or secured as to
principal by Government Obligations; or
(g) Other investments then permitted by law.
SECTION 6.03. Non-Arbitrage Covenant. The Issuer
covenants that it shall take no action nor make any
investment or use of the proceeds of the Bonds or any other
moneys which would cause the Bonds to be treated as
"arbitrage bonds" within the meaning of Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"), and
the proposed, temporary or final regulations thereunder to
the extent that the same may be applicable or proposed to
be applicable to the Bonds at the time of such action,
investment or use.
Notwithstanding any provision of this Indenture to the
contrary, the Trustee shall not be liable or responsible
for any calculation or determination which may be required
in connection with, or for the purpose of complying with,
Section 148 of the Code, or any successor statute or any
regulation, ruling or other judicial or administrative
interpretation thereof, including, without limitation, the
calculation of amounts required to be paid to the United
States of America or the determination of the maximum
amount which may be invested in nonpurpose obligations
having a yield higher than the yield on the Bonds, and the
Trustee shall not be liable or responsible for monitoring
the compliance by the Issuer or the Company with any of the
requirements of Section 148 of the Code or any applicable
regulation, ruling or other judicial or administrative
interpretation thereof; it being acknowledged and agreed
that the sole obligation of the Trustee with respect to the
investment of monies held under any fund or account created
hereunder shall be to invest such monies in accordance with
Section 6.01 hereof in each case pursuant to the
instructions received by the Trustee in accordance with
Section 6.01 hereof.
-31-
<PAGE>
ARTICLE VII
RELEASE OF LIEN
SECTION 7.01. Release of Lien. If, when any of the
Bonds shall have become due and payable in accordance with
their terms or otherwise as provided in this Indenture or
shall have been duly called for redemption or irrevocable
instructions to call such Bonds for redemption shall have
been given by the Issuer to the Trustee, the whole amount
of the principal and the interest and the premium, if any,
so due and payable upon such Bonds shall be paid or
sufficient cash or Government Obligations non-callable by
the issuer thereof, the principal of and the interest on
which when due will provide, without investment or
reinvestment, sufficient cash, shall be held by the Trustee
or the paying agents for such purpose under the provisions
of this Indenture, then and in that case such Bonds shall
cease to be secured by the lien of this Indenture, and the
Trustee in such case, on demand of the Issuer, shall
release the lien of this Indenture with respect to such
Bonds and shall execute such documents to evidence such
release as may be reasonably required by the Issuer;
provided, however, that in the event Government Obligations
shall be deposited with and held by the Trustee or the
paying agents as hereinabove provided, then in addition to
the requirements set forth in Article III of this
Indenture, the Trustee shall within thirty (30) days after
such Government Obligations shall have been deposited with
it cause a notice signed by it to be published once in a
daily newspaper or financial journal having a general
circulation in the financial community in the Borough of
Manhattan, City and State of New York, setting forth
(a) the date designated for the redemption of such Bonds,
(b) a description of the Government Obligations so held by
it and (c) that the lien of this Indenture with respect to
such Bonds has been released in accordance with the
provisions of this Section.
All moneys and obligations held by the Trustee or the
paying agents pursuant to this Section shall be held in
trust and applied to the payment, when due, of the
principal of, premium, if any, and interest on such Bonds.
-32-
<PAGE>
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default. If any of the
following events occur, it is hereby defined and declared
to be and to constitute an "event of default":
(a) default in the payment when due of any interest on
any Bond; or
(b) default in the payment when due of the principal
of, or premium, if any, on any Bond, whether at the stated
maturity thereof, or upon proceedings for redemption
thereof, or upon the maturity thereof by declaration; or
(c) default in the performance or observance of any
other of the covenants, agreements or conditions on the
part of the Issuer in this Indenture or in the Bonds, and
continuance thereof for the period after notice specified
in Section 8.13 hereof; or
(d) the occurrence of an "Event of Default" under
Section 5.1 of the Agreement; or
(e) the bonds outstanding under the First Mortgage
shall have been declared due and payable prior to their
stated maturities, and such acceleration shall not have
been rescinded.
SECTION 8.02. Acceleration. Upon the occurrence of an
event of default the Trustee may, and upon the written
request of the holders of not less than 25% in aggregate
principal amount of Bonds then outstanding shall, by notice
in writing delivered to the Issuer and the Company, declare
the principal of all Bonds then outstanding and the
interest accrued thereon immediately due and payable; and
such principal and interest shall thereupon become and be
immediately due and payable.
If after the principal of the Bonds has been so
declared to be due and payable, all arrears of interest and
interest on overdue installments of interest (if lawful) at
the rate per annum borne by the Bonds and the principal and
premium, if any, on all Bonds then outstanding which shall
have become due and payable otherwise than by acceleration
and all other sums payable under this Indenture or upon the
Bonds, except the principal of, and interest on, the Bonds
which by such declaration shall have become due and
payable, are paid by the Issuer, and the Issuer also
-33-
<PAGE>
performs all other things in respect of which it may have
been in default hereunder and pays the reasonable charges
of the Trustee, the Bondholders and any trustee appointed
under law, including the Trustee's reasonable attorneys'
fees, then, and in every such case, the Trustee shall annul
such declaration and its consequences, and such annulment
shall be binding upon all holders of Bonds issued
hereunder; but no such annulment shall extend to or affect
any subsequent default or impair any right or remedy
consequent thereon. The Trustee shall forward a copy of
any such annulment notice pursuant to this paragraph to the
Issuer and the Company. Immediately upon such annulment,
the Trustee shall cancel, by notice to the First Mortgage
Trustee, any demand made by the Trustee pursuant to the
First Mortgage.
SECTION 8.03. Other Remedies. If any event of default
occurs and is continuing, except as otherwise provided in
Section 8.12 hereof, the Trustee, before or after declaring
the principal of the Bonds immediately due and payable, may
enforce each and every right granted to it as the holder of
First Mortgage Bonds and under the Notes and the Agreement
and any supplements or amendments thereto for the benefit
of the Bondholders. In exercising such rights and the
rights given the Trustee under this Article VIII, the
Trustee shall take such action as, in the judgment of the
Trustee applying the standards described in Section 9.01(a)
hereof, would best serve the interests of the Bondholders.
SECTION 8.04. Legal Proceedings by Trustee. If any
event of default has occurred and is continuing, the
Trustee in its discretion may, and upon the written request
of the holders of not less than 25% in principal amount of
all Bonds then outstanding and receipt of indemnity to its
satisfaction shall, in its own name:
(a) by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the Bondholders,
including the right to require the Issuer to enforce any
rights under the Agreement and to require the Issuer to
carry out any other provisions of this Indenture for the
benefit of the Bondholders and to perform its duties under
the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for
the Bondholders; or
-34-
<PAGE>
(d) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the Bondholders.
No remedy conferred upon or reserved to the Trustee or
to the Bondholders by the terms of this Indenture is
intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in
addition to any other remedy given to the Trustee or to the
Bondholders hereunder or now or hereafter existing at law
or in equity or by statute.
No delay or omission to exercise any right or power
accruing upon any default or event of default shall impair
any such right or power or shall be construed to be a
waiver of any such default or event of default or
acquiescence therein; and every such right and power may be
exercised from time to time as often as may be deemed
expedient.
No waiver of any default or event of default hereunder,
whether by the Trustee or by the Bondholders, shall extend
to or shall affect any subsequent default or event of
default or shall impair any rights or remedies consequent
thereon.
SECTION 8.05. Right of Bondholders to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding, the holders of a majority in aggregate
principal amount of Bonds then 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 or of this Indenture.
SECTION 8.06. Appointment of Receivers. Upon the
occurrence and continuance of an event of default, and upon
the filing of a suit or other commencement of judicial
proceedings to enforce the rights of the Trustee and of the
Bondholders under this Indenture, the Trustee shall be
entitled as a matter of right to the appointment of a
receiver or receivers of the trust estate with such powers
as the court making such appointment shall confer.
SECTION 8.07. Waiver. Upon the occurrence and
continuance of an event of default, to the extent that such
rights may then lawfully be waived, neither the Issuer, nor
-35-
<PAGE>
the State of Georgia, nor any political subdivision
thereof, nor anyone claiming through or under any of them,
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 this Indenture, but the Issuer, for
itself and all who may claim through or under it, hereby
waives, to the extent that it lawfully may do so, the
benefit of all such laws.
SECTION 8.08. Application of Moneys. All moneys
received by the Trustee pursuant to any right given or
action taken under the provisions of this Article VIII
shall, after payment of the costs and expenses of the
proceedings resulting in the collection of such moneys and
of the expenses, liabilities and advances incurred or made
by the Trustee, be deposited in the Bond Fund and all
moneys (except moneys held in separate accounts by the
Trustee pursuant to Sections 3.03, 3.05 and 5.06 hereof) in
the Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all
such moneys shall be applied:
FIRST: To the payment to the persons entitled
thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments
of such interest and, if the amount available shall not
be sufficient to pay in full any particular
installment, then to the payment ratably, according to
the amounts due on such installment, to the persons
entitled thereto, without any discrimination or
privilege; and
SECOND: To the payment to the persons entitled
thereto of the unpaid principal of and premium, if any,
on any of the Bonds which shall have become due (other
than Bonds matured or called for redemption for the
payment of which moneys are held pursuant to the
provisions of this Indenture), in the order of their
due dates, with interest on such Bonds from the
respective dates upon which they became due and, if the
amount available shall not be sufficient to pay in full
Bonds due on any particular date, together with
such interest, then to the payment ratably, according
to the amount of principal due on such date, to the
persons entitled thereto without any discrimination or
privilege.
-36-
<PAGE>
(b) If the principal of all the Bonds shall have
become due or shall have been declared due and payable, all
such moneys shall be applied to the payment of the
principal and interest then due upon the Bonds, without
preference or priority of principal over interest or of
interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over
any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the
provisions of this Article VIII then, subject to the
provisions of subsection (b) of this Section 8.08 in the
event that the principal of all the Bonds shall later
become due or be declared due and payable, the moneys shall
be applied in accordance with the provisions of subsection
(a) of this Section 8.08.
Whenever moneys are to be applied pursuant to the
provisions of this Section 8.08, such moneys shall be
applied at such times, and from time to time, as the
Trustee shall determine, having due regard to the amount of
such moneys available for application and the likelihood of
additional moneys becoming available for such application
in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest
payment date unless it shall deem another date more
suitable) upon which such application is to be made and
upon such date interest on the amounts of principal to be
paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the
deposit with it of any such moneys and of the fixing of any
such date, and shall not be required to make payment to the
holder of any Bond until such Bond shall be presented to
the Trustee for appropriate endorsement or for cancellation
if fully paid.
Whenever all principal of and premium, if any, and
interest on all Bonds have been paid under the provisions
of this Section 8.08 and all expenses and charges of the
Trustee and any paying agents have been paid, any balance
remaining in the Bond Fund shall be paid to the Company as
provided in Section 5.08 hereof.
SECTION 8.09. Remedies Vested in Trustee. All rights
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
-37-
<PAGE>
the Bonds or the production thereof in any trial or
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 holders of the Bonds; and any
recovery of judgment shall be for the equal and ratable
benefit of the holders of the outstanding Bonds.
SECTION 8.10. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any
suit, action or proceeding in equity or at law for the
enforcement of this Indenture or for the execution of any
trust hereof or for the appointment of a receiver or any
other remedy hereunder, unless (i) a default has occurred
of which the Trustee has been notified as provided in
Section 9.01(h) hereof, or of which by said subsection it
is deemed to have notice, (ii) such default shall have
become an event of default and the holders of not less than
25% in aggregate principal amount of Bonds then outstanding
shall have made written request to the Trustee and shall
have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute
such action, suit or proceeding in its own name, (iii) they
have offered to the Trustee indemnity as provided in
Section 9.01(l) hereof, and (iv) the Trustee shall
thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and 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 remedy hereunder; it being understood and
intended that no one or more holders 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 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 and ratable
benefit of the holders of all Bonds then outstanding.
Nothing in this Indenture contained shall, however, affect
or impair the right of any Bondholder to enforce the
payment of the principal of and premium, if any, and
interest on any Bond at and after the maturity thereof, or
the obligation of the Issuer to pay the principal of and
premium, if any, and interest on each of the Bonds issued
hereunder to the respective holders thereof at the time and
place, from the source and in the manner in the Bonds
expressed.
-38-
<PAGE>
SECTION 8.11. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under
this Indenture by the appointment of a receiver, or
otherwise, and such proceedings shall have been continued
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, and all rights, remedies and powers of
the Trustee shall continue as if no such proceedings had
been taken.
SECTION 8.12. Waivers of Events of Default. The
Trustee may in its discretion waive any event of default
hereunder and its consequences and rescind any declaration
of maturity of principal, and shall do so upon the written
request of the holders of (a) not less than two-thirds in
aggregate principal amount of all the Bonds then
outstanding in respect of which default in the payment of
principal and/or interest exists, or (b) more than 50% in
aggregate principal amount of all Bonds then outstanding in
the case of any other default; provided, however, that
there shall not be waived (i) any event of default in the
payment of the principal of any outstanding Bonds when due
or (ii) any default in the payment when due of the interest
on any such Bonds unless prior to such waiver or
rescission, all arrears of interest, with interest (to the
extent permitted by law) at the rate borne by the Bonds in
respect of which such default shall have occurred on
overdue installments of interest or all arrears of payments
of principal when due, as the case may be, and all expenses
of the Trustee in connection with such default shall have
been paid or provided for, and in case of any such waiver
or rescission, or in the case any proceeding taken by the
Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and
in every such case the Issuer, the Trustee and the
Bondholders shall be restored to their former positions and
rights hereunder respectively, but no such waiver or
rescission shall extend to any subsequent or other default,
or impair any right consequent thereon.
SECTION 8.13. Notice of Default under Section 8.01(c);
Opportunity of Issuer and the Company to Cure Such Default.
Anything herein to the contrary notwithstanding, no default
under Section 8.01(c) hereof shall constitute an event of
default until actual notice of such default by registered
or certified mail shall be given to the Issuer and the
Company by the Trustee or by the holder or holders of not
less than 25% in aggregate principal amount of all Bonds
outstanding and the Issuer and the Company shall have had
sixty days after receipt of such notice to correct said
-39-
<PAGE>
default or cause said default to be corrected within the
applicable period; provided, however, if said default be
such that it cannot be corrected within the applicable
period, it shall not constitute an event of default if
corrective action is instituted by the Issuer or the
Company within the applicable period and diligently pursued
until the default is corrected.
With regard to any alleged default concerning which
notice is given to the Issuer and the Company under the
provisions of this Section 8.13, the Issuer hereby grants
the Company full authority for the account of the Issuer to
perform any covenant or obligation alleged in said notice
to constitute a default, in the name and stead of the
Issuer with full power to do any and all things and acts to
the same extent that the Issuer could do and perform any
such things and acts and with power of substitution.
In the event that the Trustee fails to receive any
payment when due under the Notes, the Trustee shall
immediately give written notice to the Company specifying
such failure.
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts. The Trustee
hereby accepts the trusts imposed upon it by this
Indenture, and agrees to perform said trusts, but only upon
and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any
event of default and after the curing or waiver 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. In case an
event of default has occurred (which has not been cured
or waived) 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 corporate trustee would exercise
or use under the circumstances in the enforcement of a
corporate indenture.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or
through attorneys, agents, receivers or employees
selected by it with reasonable care and the Trustee
shall not be responsible for the conduct of such
-40-
<PAGE>
attorneys, agents, receivers or employees, if selected
with reasonable care, and shall be entitled to advice
of counsel concerning all matters relating to the
trusts hereof and the duties hereunder, and may in all
cases pay such reasonable compensation to all such
attorneys, agents, receivers and employees as may
reasonably be employed in connection with the trusts
hereof. The Trustee may act upon the opinion or advice
of any attorney (who may be the attorney or attorneys
for the Issuer or the Company), approved by the Trustee
in the exercise of reasonable care. The Trustee shall
not be responsible for any loss or damage resulting
from any action or inaction in good faith in reliance
upon such opinion or advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to
the certificate of the Trustee endorsed on the Bonds),
or for the recording or re-recording, filing or
re-filing of this Indenture, or any other instrument
required by this Indenture to secure the Bonds, or for
insuring the Project or collecting any insurance
moneys, or for 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 issued
hereunder or intended to be secured hereby.
(d) The Trustee shall not be accountable for the
use of any Bonds authenticated or delivered hereunder.
The Trustee may become the owner of Bonds secured
hereby with the same rights which it would have if not
the Trustee. To the extent permitted by law, the
Trustee may also receive tenders and purchase in good
faith Bonds from itself, including any department,
affiliate or subsidiary, with like effect as if it were
not the Trustee.
(e) The Trustee shall be protected in acting upon
any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper or document
believed by it 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 or 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 owners of Bonds issued
in exchange therefor or in place thereof.
-41-
<PAGE>
(f) As to the existence or non-existence 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 by the
Issuer or the Company 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 9.01, or of
which by said subsection it is deemed to have notice,
the Trustee 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 or
Assistant Secretary of the Issuer under the Issuer's
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.
(g) The permissive right of the Trustee to do
things enumerated in this Indenture shall not be
construed as a duty, and it shall not be answerable for
other than its negligence or willful default.
(h) The Trustee shall not be required to take
notice or be deemed to have notice of any event of
default hereunder except failure by the Issuer to cause
to be made any of the payments to the Trustee required
to be made by Article IV hereof or the existence of an
event of default described in Section 8.01(c) hereof,
unless the Trustee shall be specifically notified in
writing of such event of default by the Issuer or by
the holders of at least 25% in aggregate principal
amount of Bonds then outstanding; and all notices or
other instruments required by this Indenture to be
delivered to the Trustee must, in order to be
effective, be delivered at the principal corporate
trust office of the Trustee, and in the absence of such
notice so delivered the Trustee may conclusively assume
there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee
and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives shall have
the right fully to inspect any and all parts of the
Project, including all books, papers and records of the
Issuer pertaining to the Project and the Bonds and to
-42-
<PAGE>
take such memoranda from and in regard thereto as may
be desired.
(j) 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.
(k) 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, 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, which the
Trustee in its discretion may deem desirable for the
purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any
cash, or the taking of any other action by the Trustee.
(l) Before taking any action referred to in
Section 8.02, 8.03, 8.04, 8.05, 8.06, 8.10, 8.12 or
9.04 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
its negligence or willful default by reason of any
action so taken.
(m) All moneys received by the Trustee or any
paying agent shall, until used or applied or invested
as herein provided, be held in trust for the purposes
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 paying agent
shall be under any liability for interest on any moneys
received hereunder except such as may be mutually
agreed upon.
SECTION 9.02. Fees, Charges and Expenses of Trustee.
The Trustee shall be entitled to payment and reimbursement
for reasonable fees for its services rendered hereunder and
all advances, counsel fees and other expenses reasonably
and necessarily made or incurred by the Trustee in
connection with such services. Upon an event of default,
but only upon an event of default, the Trustee shall have a
first lien, with right of payment prior to payment on
-43-
<PAGE>
account of principal of and premium, if any, and interest
on any Bond, upon the trust estate for the foregoing fees,
charges and expenses incurred by it.
SECTION 9.03. Notice to Bondholders if an Event of
Default Occurs. If an event of default occurs of which the
Trustee is by Section 9.01(h) hereof required to take
notice or if notice of an event of default be given as in
Section 9.01(h) provided, then the Trustee shall promptly
give written notice thereof by registered or certified mail
to each owner of Bonds then outstanding.
SECTION 9.04. Intervention by Trustee. In any
judicial proceeding to which the Issuer is a party and
which in the opinion of the Trustee and its counsel has a
substantial bearing on the interests of the owners of the
Bonds, the Trustee may intervene on behalf of the
Bondholders and shall do so if requested in writing by the
owners of at least 25% of the aggregate principal amount of
Bonds then outstanding. The rights and obligations of the
Trustee under this Section 9.04 are subject to the approval
of a court of competent jurisdiction.
SECTION 9.05. 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, sale,
merger, consolidation 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 9.06. Resignation by Trustee. The Trustee and
any successor Trustee may at any time resign from the
trusts hereby created by giving thirty days' written notice
to the Issuer and the Company, served personally or sent by
registered or certified mail, and to each owner of Bonds
then outstanding, sent by registered or certified mail, and
such resignation shall take effect at the end of such
thirty days, or upon the earlier appointment of a successor
Trustee pursuant to Section 9.08 hereof.
SECTION 9.07. Removal of Trustee. The Trustee may be
removed at any time, by an instrument or concurrent
instruments in writing delivered to the Trustee and to the
-44-
<PAGE>
Issuer and the Company, and signed by the owners of a
majority in aggregate principal amount of Bonds then
outstanding.
SECTION 9.08. Appointment of Successor Trustee. In
case the Trustee hereunder shall resign or be removed, or
be dissolved, or shall be in course of dissolution or
liquidation, or otherwise become incapable of acting
hereunder, or in case it shall be taken under the control
of any public officer or officers, or of a receiver
appointed by a court, a successor shall be appointed by the
Issuer at the direction of the Company. The Issuer shall
cause notice of such appointment to be given in the same
manner as the giving of notices of redemption as set forth
in Section 3.02 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the
owners of a majority in aggregate principal amount of Bonds
then outstanding. Every such successor Trustee appointed
pursuant to the provisions of this Section 9.08 shall be a
trust company or bank in good standing having a reported
capital, surplus and undivided profits of not less than
$25,000,000, if there be such an institution willing,
qualified and able to accept the trusts upon reasonable and
customary terms.
SECTION 9.09. 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 of 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 for more fully and certainly vesting in such
successor the estate, rights, powers and duties 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 IX, shall be filed and/or recorded by the
successor Trustee in each recording office where the
-45-
<PAGE>
Indenture shall have been filed and/or recorded and the
successor Trustee shall bear the cost thereof.
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent. In the event of a
change of Trustee, the Trustee which has resigned or been
removed shall cease to be Bond Registrar, custodian of the
Bond Fund and a paying agent for principal of and premium,
if any, and interest on the Bonds, and the successor
Trustee shall become such Bond Registrar, custodian and a
paying agent.
SECTION 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company. Whenever, after a
reasonable request by the Company, the Issuer shall fail,
refuse or neglect to give any direction to the Trustee or
to require the Trustee to take any action which the Issuer
is required to have the Trustee take pursuant to the
provisions of the Agreement or this Indenture, the Company
as agent of the Issuer may give any such direction to the
Trustee or require the Trustee to take any such action, and
the Trustee is hereby irrevocably empowered and directed to
accept such direction from the Company as sufficient for
all purposes of this Indenture. The Company shall have the
right as agent of the Issuer to cause the Trustee to comply
with any of the Trustee's obligations under this Indenture
to the same extent that the Issuer is empowered so to do.
Certain actions or failures to act by the Issuer under
this Indenture may create or result in an event of default
under this Indenture and the Company, as agent of the
Issuer, may to the extent permitted by law, perform any and
all acts or take such action as may be necessary for and on
behalf of the Issuer to prevent or correct said event of
default and the Trustee shall take or accept such
performance by the Company as performance by the Issuer in
such event.
The Issuer hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do
all things and perform all acts provided, and to the extent
so provided, by this Section 9.11.
SECTION 9.12. No Transfer of Notes or First Mortgage
Bonds Held by the Trustee; Exception. Except as required
to effect an assignment to a successor Trustee, the Trustee
shall not sell, assign or transfer Notes or First Mortgage
Bonds, and the Trustee is authorized to enter into an
agreement with the Company to such effect, including a
consent to the issuance of stop transfer instructions to
the First Mortgage Trustee.
-46-
<PAGE>
SECTION 9.13. Filing of Certain Continuation
Statements. From time to time, the Trustee shall duly
file, or cause to be filed, at the expense of the Company,
continuation statements for the purpose of continuing
without lapse the effectiveness of the filing of the
financing statements with respect to the security interest
created by this Indenture in the Agreement, the Notes and
the First Mortgage Bonds, at or prior to the issuance of
the First Series 1994 Bonds and any Additional Bonds and
any previously filed continuation statements which shall
have been filed as herein required. The Issuer shall sign
and deliver to the Trustee or its designee such
continuation statements as may be requested of it from time
to time by the Trustee. Upon the filing of any such
continuation statements the Trustee shall immediately
notify the Issuer and the Company that the same has been
accomplished.
SECTION 9.14. Voting of First Mortgage Bonds Held by
the Trustee. The Trustee, as a holder of First Mortgage
Bonds, shall attend any meeting of bondholders under the
First Mortgage as to which it receives due notice. Either
at such meeting, or otherwise where consent of holders of
first mortgage bonds of the Company is sought without a
meeting, the Trustee shall vote as such holder, or shall
consent with respect thereto, proportionately with what the
Trustee reasonably believes will be the vote or consent of
all other first mortgage bonds of the Company then
outstanding and eligible to vote or consent.
Notwithstanding the foregoing, the Trustee shall not
vote as such holder in favor of, or give its consent to,
any action which, in the Trustee's opinion, would
materially adversely affect the interests of the
Bondholders, except upon notification by the Trustee to the
Bondholders of such proposal and consent thereto of the
holders of at least 50% in aggregate principal amount of
the Bonds then outstanding and, if such action would also
affect one or more but less than all series of Bonds, the
consent thereto of the holders of at least 50% in aggregate
principal amount of all the outstanding Bonds of such
series so affected and, if such proposal would so affect
the rights of some but less than all the outstanding Bonds
of any one series, the consent thereto of the holders of at
least 50% in aggregate principal amount of the Bonds so
affected.
-47-
<PAGE>
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders. The Issuer and the Trustee may,
without the consent of, or notice to, any of the
Bondholders, enter into such 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 set forth any or all of the matters in
connection with the issuance of Additional Bonds as
provided in Section 2.10 hereof;
(b) to cure any ambiguity, defect or omission in
this Indenture, or to otherwise amend this Indenture,
in such manner as shall not in the opinion of the
Trustee impair the security hereof or adversely affect
the Bondholders;
(c) to grant to or confer upon the Trustee for
the benefit of the Bondholders any additional rights,
remedies, powers or authorities that may lawfully be
granted or conferred upon the Bondholders or the
Trustee;
(d) to add additional covenants of the Issuer, or
to surrender any right or power herein conferred upon
the Issuer;
(e) to subject to this Indenture additional
revenues, properties or collateral;
(f) 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 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, and, if they so determine, to add to this
Indenture or 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;
(g) to evidence the succession of a new Trustee
hereunder; and
-48-
<PAGE>
(h) to authorize different authorized
denominations of the Bonds and to make correlative
amendments and modifications to this Indenture
regarding exchangeability of Bonds of different
authorized denominations, redemptions of portions of
Bonds of particular authorized denominations and
similar amendments and modifications of a technical
nature.
SECTION 10.02. Supplemental Indentures Requiring
Consent of Bondholders. Exclusive of supplemental
indentures covered by Section 10.01 hereof and subject to
the terms and provisions contained in this Section 10.02,
and not otherwise, the holders of not less than 50% in
aggregate principal amount of the Bonds then 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
Trustee 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
indenture supplemental hereto; provided, however, that
nothing in this Section 10.02 contained shall permit, or be
construed as permitting (i) an extension of the maturity or
mandatory sinking fund redemption dates of the principal of
or the interest on any Bond issued hereunder, or (ii) a
reduction in the principal amount of, or redemption premium
on, any Bond or Bonds or the rate or rates of interest
thereon, or (iii) a privilege or priority of any
outstanding Bond or Bonds over any other outstanding Bond
or Bonds, or (iv) a reduction in the aggregate principal
amount of the Bonds required for consent to such
supplemental indenture.
If at any time the Issuer shall request the Trustee to
enter into any such supplemental indenture for any of the
purposes of this Section 10.02, the Trustee shall, upon
being satisfactorily indemnified with respect to expenses,
cause notice of the proposed execution of such supplemental
indenture to be given in the same manner as the giving of
notices of redemption as set forth in Section 3.02 hereof.
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 corporate trust office
of the Trustee for inspection by all Bondholders. If,
within sixty days or such longer period as shall be
prescribed by the Issuer following the giving of such
notice, the holders of not less than 50% in aggregate
principal amount of the Bonds outstanding at the time of
-49-
<PAGE>
the execution of any such supplemental indenture shall have
consented to and approved the execution thereof as herein
provided, no holder 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 10.02 permitted
and provided, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and without
the necessity for notation on the outstanding Bonds.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article X which affects
the rights of the Company shall not become effective unless
and until the Company 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 to the Company
at least fifteen days prior to the giving of notice of the
proposed execution of such supplemental indenture as
provided in this Section 10.02. The Company 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 Company on or before 4:30 P.M., local
time, on the fifteenth day after the Company's receipt of
said notice and a copy of the proposed supplemental
indenture.
SECTION 10.03. 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 X and in so doing shall be fully protected by an
opinion of counsel, who may be counsel for the Issuer or
the Company, 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.
-50-
<PAGE>
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders. The Issuer and the
Trustee shall, without the consent of or notice to the
Bondholders, consent to any amendment, change or
modification of the Agreement which may be entered into
pursuant to Section 2.10 hereof or as may be required
(i) by the provisions of the Agreement or this Indenture,
(ii) for the purpose of curing any ambiguity or formal
defect or omission, (iii) in connection with the Project
facilities so as to identify the same more precisely or
substitute or add additional facilities, or (iv) in
connection with any other change therein which, in the
judgment of the Trustee, is not to the prejudice of the
Trustee or the Bondholders.
SECTION 11.02. Amendments, Etc., to Agreement
Requiring Consent of Bondholders. Except for the
amendments, changes or modifications as provided in Section
11.01 hereof, neither the Issuer nor the Trustee shall
consent to any other amendment, change or modification of
the Agreement or the terms of the Notes without the giving
of notice and the written approval or consent of the
holders of not less than 50% in aggregate principal amount
of the Bonds at the time outstanding given and procured as
in this Section 11.02 provided. If at any time the Issuer
and the Company shall request the consent of the Trustee to
any such proposed amendment, change or modification of the
Agreement or the terms of the Notes, 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 10.02 hereof with respect to supplemental
indentures. 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 with the Trustee for inspection by all
Bondholders.
SECTION 11.03. 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 XI and in so doing
shall be fully protected by an opinion of counsel, who may
be counsel for the Issuer or the Company, 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.
-51-
<PAGE>
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, Etc., of Bondholders. Any
consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and
executed by the Bondholders may be in any number of
concurrent writings of similar tenor and may be signed or
executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent, if
made in the following manner, shall be sufficient for any
of the purposes of this Indenture, and shall be conclusive
in favor of the Trustee with regard to any action taken by
it under such request or other instrument, namely:
The fact and date of the execution by any person
of any such writing may be proved by the certificate of
any officer in any jurisdiction who by law has power to
take acknowledgments within such jurisdiction that the
person signing such writing acknowledged before him the
execution thereof, or by an affidavit of any witness to
such execution.
SECTION 12.02. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing
expressed or mentioned in or to be inferred from this
Indenture, or the Bonds, is intended or shall be construed
to give to any person or company other than the Company,
the parties hereto, and the holders of the Bonds, any legal
or equitable right, remedy or claim under or in respect of
this Indenture or any covenants, conditions and provisions
herein contained; this Indenture and all of the covenants,
conditions and provisions hereof are intended to be and are
for the sole and exclusive benefit of the Company, the
parties hereto and the holders of the Bonds as herein
provided.
SECTION 12.03. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact,
be illegal, inoperative or unenforceable, the same shall
not affect any other provision or provisions herein
contained or render the same invalid, inoperative or
unenforceable to any extent whatever.
SECTION 12.04. Notices. Any notice, request,
complaint, demand, communication or other paper shall be
sufficiently given and shall be deemed given when delivered
-52-
<PAGE>
or mailed by registered or certified mail, postage prepaid,
or sent by telegram, addressed as follows: if to the
Issuer, c/o Board of Commissioners of Monroe County,
Forsyth, Georgia 31029, Attention: Chairman; if to the
Trustee, at 214 Hogan Street, 2nd Floor, Jacksonville,
Florida 32202, Attention: Corporate Trust Department; if
to the Company, at 500 Bayfront Parkway, Pensacola, Florida
32501, Attention: Treasurer, with copies to Southern
Company Services, Inc., 64 Perimeter Center East, Atlanta,
Georgia 30346, Attention: Corporate Finance Department;
and if to the First Mortgage Trustee, to The Chase
Manhattan Bank, N.A., 4 Chase MetroTech Center, Brooklyn,
New York 11245, Attention: Corporate Trust Department. A
duplicate copy of each notice required to be given
hereunder by either the Issuer or the Trustee shall also be
given to the Company, and a duplicate copy of each notice
required to be given hereunder by the Trustee to either the
Issuer or the Company shall also be given to the other.
The Issuer, the Company, the Trustee and the First Mortgage
Trustee may, by notice given hereunder, designate any
further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 12.05. Trustee as Paying Agent and Bond
Registrar. The Trustee is hereby designated and agrees to
act as a paying agent and Bond Registrar for and in respect
of the Bonds.
SECTION 12.06. Payments Due on Saturdays, Sundays and
Holidays. In any case where the date of maturity of
interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall be in the city of payment a
Saturday, a Sunday or a legal holiday or a day on which
banking institutions are authorized by law to close, then
payment of interest or principal and premium, if any, need
not be made on such date but may be made on the next
succeeding business day with the same force and effect as
if made on the date of maturity or the date fixed for
redemption, and no interest on such payment shall accrue
for the period after such date.
SECTION 12.07. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the
same instrument.
SECTION 12.08. Applicable Provisions of Law. This
Indenture shall be governed by and construed in accordance
with the laws of the State of Georgia.
-53-
<PAGE>
SECTION 12.09. Captions. The captions or headings in
this Indenture are for convenience only and in no way
define, limit or describe the scope or intent of any
provisions or Sections of this Indenture.
SECTION 12.10. No Liability of Officers. No covenant
or agreement contained in the Bonds or this Indenture shall
be deemed to be a covenant or agreement of any
commissioner, agent or employee of the Issuer in his
individual capacity, and neither the officers of the Issuer
nor any official executing the Bonds or this Indenture
shall be liable personally on the Bonds or be subject to
any personal liability or accountability by reason of the
issuance of the Bonds or the execution and delivery of this
Indenture.
-54-
<PAGE>
IN WITNESS WHEREOF, the Development Authority of Monroe
County 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, and to evidence
its acceptance of the trusts hereby created First Union
National Bank of Florida, as 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 day and year first
above written.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
By:
Title:
Attest:
Title:
FIRST UNION NATIONAL BANK
OF FLORIDA,
as Trustee
By:
Title:
Attest:
Title:
<PAGE>
[cao] H:\WPDOCS\GULF\76153\trust.fxd
<PAGE>
Exhibit B-2(b)
DRAFT
September 13, 1994
DEVELOPMENT AUTHORITY OF MONROE COUNTY
to
FIRST UNION NATIONAL BANK OF FLORIDA,
as Trustee
TRUST INDENTURE
Dated as of September 1, 1994
Relating to
$20,000,000
Pollution Control Revenue Bonds
(Gulf Power Company Plant Scherer Project)
Second Series 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions . . . . . . . . . . . . . . . . 3
Section 1.02. Rules of Construction . . . . . . . . . . . 8
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating . . . . . . 8
Section 2.02. Interest on the Bonds . . . . . . . . . . . 9
Section 2.03. Execution and Authentication . . . . . . . 16
Section 2.04. Bond Register . . . . . . . . . . . . . . . 17
Section 2.05. Registration and Exchange of Bonds; Persons
Treated as Owners . . . . . . . . . . . . . 17
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds . . . . . . . . . . . . . 18
Section 2.07. Cancellation of Bonds . . . . . . . . . . . 19
Section 2.08. Temporary Bonds . . . . . . . . . . . . . . 19
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee . . . . . . . . . . . . 19
Section 3.02. Redemption Dates . . . . . . . . . . . . . 19
Section 3.03. Selection of Bonds to Be Redeemed . . . . . 19
Section 3.04. Redemption Notices . . . . . . . . . . . . 20
Section 3.05. Payment of Bonds Called for Redemption . . 21
Section 3.06. Bonds Redeemed in Part . . . . . . . . . . 21
Section 3.07. Purchase of Bonds in Lieu of Redemption . . 22
Section 3.08. Disposition of Purchased Bonds . . . . . . 22
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds . . . . . . . . . . 24
Section 4.02. Payment of Bonds . . . . . . . . . . . . . 25
Section 4.03. Investments of Moneys . . . . . . . . . . . 25
Section 4.04. Moneys Held in Trust; Unclaimed Funds . . . 26
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System . . . . . . . . . . . . . 26
i
<PAGE>
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds . . . . . . . . . . . . . 28
Section 6.02. Performance of Covenants; Issuer . . . . . 29
Section 6.03. Recording and Filing; Further Assurances . 29
Section 6.04. Tax Covenants . . . . . . . . . . . . . . . 29
Section 6.05. Rights Under Agreement . . . . . . . . . . 30
Section 6.06. Designation of Additional Paying Agents . . 30
Section 6.07. Existence of Issuer . . . . . . . . . . . . 30
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture . 31
Section 7.02. Application of Trust Money . . . . . . . . 32
Section 7.03. Repayment to Company . . . . . . . . . . . 32
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default . . . . . . . . . . . . . 32
Section 8.02. Acceleration . . . . . . . . . . . . . . . 33
Section 8.03. Other Remedies . . . . . . . . . . . . . . 33
Section 8.04. Legal Proceeding by Trustee . . . . . . . . 34
Section 8.05. Appointment of Receivers . . . . . . . . . 34
Section 8.06. Waiver of Past Defaults . . . . . . . . . . 35
Section 8.07. Control by Majority . . . . . . . . . . . . 35
Section 8.08. Limitation on Suits . . . . . . . . . . . . 35
Section 8.09. Rights of Holders to Receive Payment . . . 36
Section 8.10. Collection Suit by Trustee . . . . . . . . 36
Section 8.11. Trustee May File Proofs of Claim . . . . . 36
Section 8.12. Priorities . . . . . . . . . . . . . . . . 36
Section 8.13. Undertaking for Costs . . . . . . . . . . . 36
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts . . . . . . . . . 37
Section 9.02. Fees, Charges and Expenses of Trustee . . . 40
Section 9.03. Notice to Bondholders if an Event of Default
Occurs . . . . . . . . . . . . . . . . . . 40
Section 9.04. Intervention by Trustee . . . . . . . . . . 40
Section 9.05. Successor Trustee . . . . . . . . . . . . . 40
Section 9.06. Resignation by Trustee . . . . . . . . . . 41
Section 9.07. Removal of Trustee . . . . . . . . . . . . 41
Section 9.08. Appointment of Successor Trustee . . . . . 41
Section 9.09. Concerning Any Successor Trustee . . . . . 41
ii
<PAGE>
Section 9.10. Successor Trustee as Bond Registrar and Paying
Agent . . . . . . . . . . . . . . . . . . . 42
Section 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company . . . . . 42
Section 9.12. No Transfer of Note or First Mortgage Bonds
Held by the Trustee; Exception . . . . . . 43
Section 9.13. Filing of Certain Continuation Statements . 43
Section 9.14 Duties of Remarketing Agent . . . . . . . . 43
Section 9.15 Eligibility of Remarketing Agent . . . . . 43
Section 9.16 Replacement of Remarketing Agent . . . . . 44
Section 9.17. Compensation of Remarketing Agent . . . . . 44
Section 9.18. Successor Remarketing Agent . . . . . . . . 44
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders . . . . . . 44
Section 10.02. With Consent of Bondholders . . . . . . . . 45
Section 10.03. Effect of Consents . . . . . . . . . . . . 46
Section 10.04. Notation on or Exchange of Bonds . . . . . 46
Section 10.05. Signing by Trustee of Amendments and
Supplements . . . . . . . . . . . . . . . . 46
Section 10.06. Company Consent Required . . . . . . . . . 46
Section 10.07. Notice to Bondholders . . . . . . . . . . . 46
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT,
OR FIRST MORTGAGE BOND
Section 11.01. Without Consent of Bondholders . . . . . . 47
Section 11.02. With Consent of Bondholders . . . . . . . . 47
Section 11.03. Consents by Trustee to Amendments or
Supplements . . . . . . . . . . . . . . . . 47
ARTICLE XII
VOTING OF FIRST MORTGAGE BOND
Section 12.01. Voting of Mortgage Bond Held by the Trustee 47
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Notices . . . . . . . . . . . . . . . . . . 48
Section 13.02. Bondholders' Consents . . . . . . . . . . . 48
Section 13.03. Appointment of Separate Paying Agent and/or
Tender Agent . . . . . . . . . . . . . . . 49
Section 13.04. Limitation of Rights . . . . . . . . . . . 49
Section 13.05. Severability . . . . . . . . . . . . . . . 50
iii
<PAGE>
Section 13.06. Payments Due on Non-Business Days . . . . . 50
Section 13.07. Governing Law . . . . . . . . . . . . . . . 50
Section 13.08. Captions . . . . . . . . . . . . . . . . . 50
Section 13.09. No Liability of Officers . . . . . . . . . 50
Section 13.10. Counterparts . . . . . . . . . . . . . . . 50
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . 51
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . Form of Bond
iv
<PAGE>
TRUST INDENTURE
THIS INDENTURE made and entered into as of September 1,
1994, by and between the DEVELOPMENT AUTHORITY OF MONROE COUNTY,
a public body corporate and politic duly organized and existing
under the Constitution and laws of the State of Georgia (the
"Issuer"), and FIRST UNION NATIONAL BANK OF FLORIDA, a national
banking association duly organized, existing and authorized to
accept and execute trusts of the character herein set out under
and by virtue of the laws of the United States of America, with
its principal corporate trust office located in Jacksonville,
Florida, as Trustee (the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the Issuer
has entered into a Loan Agreement dated as of September 1, 1994
(the "Agreement") with Gulf Power Company (the "Company")
providing for the undertaking by the Issuer to loan amounts to
the Company in order to refund certain of the Issuer's bonds
heretofore issued to finance the acquisition, construction,
installation and equipping of the Company's interest in certain
air and water pollution control and sewage and solid waste
disposal facilities, or portions thereof, at Plant Scherer, in
Monroe County, Georgia (the "Project").
B. The Agreement provides that, for the purposes therein
set forth, the Issuer will issue and sell its Pollution Control
Revenue Bonds (Gulf Power Company Plant Scherer Project), Second
Series 1994, in the aggregate principal amount of $20,000,000
(the "Bonds"); that the Issuer will loan the proceeds of the
Bonds to the Company; that to evidence the Loan (as hereinafter
defined) the Company will execute and deliver, concurrently with
the issuance of the Bonds, a non-negotiable promissory note in a
like principal amount bearing interest at the rate or rates borne
by the Bonds; and that as security for its obligation to pay the
promissory note the Company will deliver to the Trustee,
concurrently with the issuance of the Bonds, first mortgage bonds
issued under and secured by the Company Indenture (as hereinafter
defined) in accordance with Section 3.4 of the Agreement.
C. The execution and delivery of this Indenture (as
hereinafter defined) and the Agreement and the issuance and sale
of the Bonds have been in all respects duly and validly
authorized by resolution duly adopted by the Issuer.
D. The Company has agreed to make payments on the
aforementioned promissory note to the Issuer in amounts
sufficient to pay the principal, purchase price, premium, if any,
and interest on the Bonds, all as hereinafter defined.
<PAGE>
E. The Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof.
Accordingly, the Issuer and the Trustee agree as follows for
the benefit of each other and for the benefit of the holders of
the Bonds issued pursuant to this Indenture.
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the Trustee
of the trusts hereby created, and the purchase and acceptance of
the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the Issuer in
hand paid by the Trustee at or before the execution and delivery
of this Indenture, the receipt of which is hereby acknowledged,
and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from
time to time be or become holders thereof, and in order to secure
the payment of all Bonds at any time issued and outstanding
hereunder and the interest and the redemption premiums, if any,
thereon according to their tenor, purport and effect, and in
order to secure the performance and observance of all the
covenants, agreements and conditions therein or herein contained;
the Issuer has executed and delivered this Indenture, will cause
the Company to deliver to the Trustee the Company's promissory
note dated the date of the initial issuance of the Bonds and the
Company's First Mortgage Bonds, Second Pollution Control Series
due September 1, 2024; the Issuer does hereby bargain, sell,
convey, assign and pledge to the Trustee, and grant to the
Trustee a security interest in, all rights, title and interests
of the Issuer in, to and under such promissory note and all
payments made and to be made thereunder and in, to and under such
First Mortgage Bonds and all payments, if any, made and to be
made thereunder as security for the payment of all outstanding
Bonds and the interest and the premium, if any, thereon and does
hereby bargain, sell, convey, assign and pledge to the Trustee,
and grant to the Trustee a security interest in, all other
rights, title and interests of the Issuer in, to and under the
Agreement and all moneys receivable thereunder (except for
Unassigned Rights, as defined herein) as security for the
satisfaction of any other obligation assumed by it in connection
with all outstanding Bonds at any time issued hereunder;
TO HAVE AND TO HOLD the same unto the Trustee and its
successors in trust forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth, for the equal and proportionate benefit and security of
all and singular present and future holders of the Bonds issued
2
<PAGE>
under this Indenture, without preference, priority or distinction
as to lien or otherwise, except as otherwise hereinafter
provided, of any one Bond over any other Bond, by reason of
priority in the issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Issuer, its successors or
assigns shall pay or cause to be paid the principal of, premium,
if any, and interest on the Bonds due or to become due thereon,
at the times and in the manner mentioned in the Bonds, and shall
perform all the covenants and conditions required of it by this
Indenture, and shall pay or cause to be paid to the Trustee and
any additional paying agents all sums of money due or to become
due to them in accordance with the terms and provisions hereof,
then upon such final payments this Indenture and the rights
hereby granted shall terminate and the Trustee shall release this
Indenture and shall execute such documents to evidence such
termination and release as may be reasonably required by the
Issuer; otherwise this Indenture to be and remain in full force
and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and secured
hereunder are to be issued, authenticated and delivered, and all
said property, rights and interests, including, without
limitation, the amounts hereby assigned and pledged, are to be
dealt with and disposed of subject to the terms of this
Indenture, and the Issuer agrees with the Trustee and with the
respective owners, from time to time, of said Bonds, or part
thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. For all purposes of this Inden-
ture, unless the context requires otherwise, the following terms
shall have the following meanings:
"Act" means the Development Authorities Law as set forth in
O.C.G.A. Section 36-62-1, et seq., as amended.
"Agreement" means the Loan Agreement dated as of
September 1, 1994, between the Issuer and the Company, as amended
and supplemented from time to time.
"Beneficial Owner" means the purchaser of a beneficial
interest in the Bonds when the Bonds are held by the Securities
Depository in the Book-Entry System, and otherwise means a
Bondholder.
3
<PAGE>
"Bondholder" or "holder" means the registered owner of any
Bond.
"Bonds" means the Pollution Control Revenue Bonds (Gulf
Power Company Plant Scherer Project), Second Series 1994 issued
by the Issuer hereunder in the aggregate principal amount of
$20,000,000.
"Book-Entry System" means the system maintained by the
Securities Depository described in Section 5.01.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which commercial banks in New York, New
York, Atlanta, Georgia, or the city in which the principal
corporate trust office of the Trustee is located, are authorized
by law to close or (iii) a day on which the New York Stock
Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended,
and the Treasury regulations thereunder.
"Commercial Paper Mode" means each period of time, comprised
of Commercial Paper Periods, during which Commercial Paper Rates
are in effect.
"Commercial Paper Period" means, with respect to any Bond,
each period set under Section 2.02(a)(3).
"Commercial Paper Rate" means the interest rate on each Bond
set under Section 2.02(a)(3).
"Company" means Gulf Power Company, a Maine corporation, and
its successors and assigns, and any surviving, resulting or
transferee entity as provided in Section 4.3 of the Agreement.
"Company Indenture" means the Indenture dated as of
September 1, 1941 between the Company and The Chase Manhattan
Bank (National Association), as trustee, as amended and
supplemented from time to time.
"Credit Agreement" means the Revolving Credit Letter dated
as of September 28, 1994, between the Company and the Bank of New
York, arranged by the Company pursuant to the provisions of
Section 3.6 of the Agreement, or any line of credit or similar
facility or facilities that the Company may enter into in
substitution or replacement of such Revolving Credit Letter from
time to time and that expressly provides that funds obtained
thereunder may be used only to pay the purchase price (including
accrued interest, if any) of Bonds.
"Daily Rate" means an interest rate on the Bonds set under
Section 2.02(a)(l).
4
<PAGE>
"Event of Default" is defined in Section 8.01.
"Favorable Opinion of Tax Counsel" means an Opinion of Tax
Counsel addressed to the Issuer and to the Trustee to the effect
that the action proposed to be taken is permitted by the laws of
the State and by this Indenture and will not adversely affect any
exclusion from gross income for federal income tax purposes of
interest on the Bonds.
"First Mortgage Bonds" means the First Mortgage Bonds,
Second Pollution Control Series due September 1, 2024 of the
Company issued by the Company under the Company Indenture
pursuant to Section 3.4 of the Agreement.
"Government Obligations" means (i) noncallable direct
obligations of the United States for which its full faith and
credit are pledged, (ii) noncallable obligations of a Person
controlled or supervised by and acting as an agency or instrumen-
tality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation
of the United States, or (iii) securities or receipts evidencing
ownership interests in obligations or specified portions (such as
principal or interest) of obligations described in (i) or (ii).
"Indenture" means this Trust Indenture, as it may be amended
or supplemented from time to time in accordance with its terms.
"Interest Payment Date" is defined in the form of the Bonds
appearing in Exhibit A hereto.
"Interest Period" is defined in the form of the Bonds
appearing in Exhibit A hereto.
"J.J. Kenny Index" means, as of any date, the index of 7-day
yields on high grade tax exempt municipal bonds as determined by
J.J. Kenny Co., Inc. or any successor thereto and published on
such date (or, if not published on said date, on the most recent
day prior thereto on which such index shall have been so
published).
"Long-Term Interest Rate" means an interest rate on the
Bonds set under Section 2.02(a)(4).
"Long-Term Interest Rate Period" is defined in Section
2.02(a)(4).
"Maturity Date" means the stated maturity for the Bonds as
set forth in Section 2.01.
"Mortgage Trustee" means the trustee or trustees at the time
serving as such under the Company Indenture.
5
<PAGE>
"1954 Code" means the Internal Revenue Code of 1954, as
amended, and the Treasury regulations thereunder.
"Note" means the promissory note executed and delivered by
the Company concurrently with the issuance of the Bonds in a like
principal amount bearing interest at the rate or rates borne by
the Bonds.
"Opinion of Counsel" means a written opinion of counsel who
is acceptable to the Issuer and the Trustee. Such counsel may be
an employee of or counsel to the Issuer, the Trustee or the
Company.
"Opinion of Tax Counsel" means an Opinion of Counsel by
counsel of nationally recognized standing in matters relating to
the exclusion of interest from gross income on obligations issued
by or on behalf of states and their political subdivisions.
The term "outstanding" when used with reference to Bonds, or
"Bonds outstanding" means all Bonds which have been authenticated
and delivered by the Trustee under this Indenture, except the
following:
a. Bonds canceled or purchased by or delivered to
the Trustee for cancellation.
b. Bonds that have become due (at maturity or on
redemption, acceleration or otherwise) and for the payment,
including interest accrued to the due date, of which
sufficient moneys are held by the Trustee.
c. Bonds deemed paid by Section 7.01.
d. Bonds in lieu of which others have been
authenticated under Section 2.05 (relating to registration
and exchange of Bonds) or Section 2.06 (relating to
mutilated, lost, stolen, destroyed or undelivered Bonds).
Bonds purchased pursuant to tenders or in lieu of redemption and
not delivered to the Trustee for payment are not outstanding, but
there will be outstanding Bonds authenticated and delivered in
lieu of such undelivered Bonds as provided in the second
paragraph of Section 2.06.
"Participant" means one of the entities which deposit
securities, directly or indirectly, in the Book-Entry System.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or
political subdivision thereof.
6
<PAGE>
"Plant" means the Scherer steam electric generating plant
located in Monroe County, Georgia.
The term "principal," when used with reference to any Bonds,
includes any premium payable on those Bonds.
"Prior Indenture" means the Trust Indenture dated as of
December 1, 1984 between the Issuer and the Refunded Bonds
Trustee, under which the Refunded Bonds were issued.
"Project" means the air and water pollution control and
sewage and solid waste disposal facilities at the Plant financed
from the proceeds of the Refunded Bonds.
"Record Date" is defined in the form of the Bonds appearing
as Exhibit A hereto.
"Refunded Bonds" means the Issuer's Pollution Control
Revenue Bonds (Gulf Power Company Plant Scherer Project), First
Series 1984, in the aggregate principal amount of $20,000,000
being refunded by the Bonds.
"Refunded Bonds Trustee" means First Union National Bank of
Florida, in its capacity as trustee for the Refunded Bonds.
"Remarketing Agent" means Lehman Brothers Inc. and its
successors under this Indenture.
"Responsible Officer" means any officer or trust officer of
the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Securities Depository" means The Depository Trust Company,
New York, New York or its nominee, and its successors and
assigns, or any successor appointed under Section 5.01.
"State" means the State of Georgia.
"Supplemental Indenture" means the Supplemental Indenture,
dated as of September 1, 1994, to the Company Indenture.
"Trustee" means the entity identified as such in the heading
of this Indenture and its successors under this Indenture.
"Unassigned Rights" means the rights of the Issuer under
Section 4.2 and Section 5.3 of the Agreement.
"Weekly Rate" means an interest rate on the Bonds set under
Section 2.02(a)(2).
Section 1.02. Rules of Construction. Unless the context
otherwise requires,
7
<PAGE>
a. an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles,
b. references to Articles and Sections are to the
Articles and Sections of this Indenture, and
c. the singular form of any word, including the
terms defined in Section 1.01, includes the plural, and vice
versa, and a word of any gender includes all genders.
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating. The Bonds
shall be designated "Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Gulf Power Company
Plant Scherer Project), Second Series 1994." The total principal
amount of Bonds that may be outstanding shall not exceed
$20,000,000. The Bonds shall be substantially in the form of
Exhibit A, which is part of this Indenture, in the denominations
provided for in the Bonds. The Bonds may have notations, legends
or endorsements required by law or usage.
All Bonds will be dated the date of original issuance and
delivery and shall mature, subject to prior redemption, on
September 1, 2024. Bonds will be numbered as determined by the
Trustee.
Upon the execution and delivery of this Indenture, the
Issuer will execute and deliver to the Trustee and the Trustee
will authenticate the Bonds and deliver them to the purchaser or
purchasers as directed by the Issuer.
Section 2.02. Interest on the Bonds. Interest on the Bonds
will be payable as provided in the Bonds and in this Section.
Interest on the Bonds will initially be payable at the Daily
Rate. The interest rate determination method may be changed by
the Company as described in paragraph (b) below. The methods of
determining the various interest rates are as provided in the
following paragraph (a).
(a) Interest Rate Determination Methods. While there
exists an Event of Default under the Indenture, the interest rate
on the Bonds will be the rate on the Bonds on the day before the
Event of Default occurred, except that if interest on any Bond
was then payable at a Commercial Paper Rate, the interest rate
for all Bonds then bearing interest at a Commercial Paper Rate
will be the highest Commercial Paper Rate then in effect for any
Bond.
8
<PAGE>
(1) Daily Rate. When interest on the Bonds is
payable at a Daily Rate, the Remarketing Agent will set a
Daily Rate on or before 11:00 a.m., New York City time, on
each Business Day for that Business Day. Each Daily Rate
will be the minimum rate necessary (as determined by the
Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing
market conditions) for the Remarketing Agent to sell the
Bonds on the day the rate is set at their principal amount
(without regard to accrued interest). The Daily Rate for
any non-Business Day will be the rate for the last day for
which a rate was set.
(2) Weekly Rate. When interest on the Bonds is
payable at a Weekly Rate, the Remarketing Agent will set a
Weekly Rate on or before 5:00 p.m., New York City time, on
the last Business Day before the commencement of a period
during which the Bonds bear interest at a Weekly Rate and on
each Tuesday thereafter so long as interest on the Bonds is
to be payable at a Weekly Rate or, if any Tuesday is not a
Business Day, on the next preceding Business Day. Each
Weekly Rate will be the minimum rate necessary (as
determined by the Remarketing Agent based on the examination
of tax-exempt obligations comparable to the Bonds known by
the Remarketing Agent to have been priced or traded under
then prevailing market conditions) for the Remarketing Agent
to sell the Bonds on the date the rate is set at their
principal amount (without regard to accrued interest).
Thereafter, each Weekly Rate shall apply to (i) the period
beginning on the Wednesday after the Weekly Rate is set and
ending on the following Tuesday or, if earlier, ending on
the day before the effective date of a new method of
determining the interest rate on the Bonds or (ii) the
period beginning on the effective date of the change to a
Weekly Rate and ending on the next Tuesday.
(3) Commercial Paper Rate. During a Commercial Paper
Mode, each Bond will bear interest during the Commercial
Paper Period for such Bond at the Commercial Paper Rate for
such Bond. Different Commercial Paper Periods may apply to
different Bonds at any time and from time to time. Except
as otherwise described in this subparagraph (3), the
Commercial Paper Period and Commercial Paper Rate for each
Bond will be determined by the Remarketing Agent no later
than 12:15 p.m., New York City time, on the first day of
each Commercial Paper Period.
(i) Determination of Commercial Paper Periods.
Subject to Section 2.02(b)(2)(vii), each Commercial
Paper Period will be a period of at least 30 days (or
such shorter period as may be permitted by the
9
<PAGE>
Securities Depository) and not more than 365 days,
determined by the Remarketing Agent to be the period
which, together with all other Commercial Paper Periods
for all Bonds then outstanding, will, in the judgment
of the Remarketing Agent, result in the lowest overall
interest expense on the Bonds over the next 365 days;
provided, however, that at any time at which a Credit
Agreement is in effect, the Remarketing Agent shall not
establish any Commercial Paper Period which would end
at a time when no Credit Agreement will be in effect.
Each Commercial Paper Period will end on either the day
before a Business Day or on the day before the Maturity
Date for such Bond. However, any Bond purchased on
behalf of the Company and remaining unsold by the
Remarketing Agent as of the close of business on the
first day of the Commercial Paper Period for that Bond
will have a Commercial Paper Period of 30 days (or such
shorter period as may be permitted by the Securities
Depository) or, if that Commercial Paper Period would
not end on a day before a Business Day, a Commercial
Paper Period of the shortest possible duration greater
than 30 days (or such shorter period as may be
permitted by the Securities Depository) ending on a day
before a Business Day.
In determining the number of days in each Commercial
Paper Period, the Remarketing Agent shall take into
account the following factors: (I) existing short-term
tax-exempt market rates and indices of such short-term
rates, (II) the existing market supply and demand for
short-term tax-exempt securities, (III) existing yield
curves for short-term and long-term tax-exempt
securities for obligations of credit quality comparable
to the Bonds, (IV) general economic conditions,
(V) industry economic and financial conditions that may
affect or be relevant to the Bonds, (VI) the number of
days in other Commercial Paper Periods applicable to
the Bonds and (VII) such other facts, circumstances and
conditions as the Remarketing Agent, in its sole
discretion, shall determine to be relevant.
(ii) Determination of Commercial Paper Rates. The
Commercial Paper Rate for each Commercial Paper Period
for each Bond shall be the minimum rate necessary (as
determined by the Remarketing Agent based on the
examination of tax-exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been
priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell such Bond
on the date and at the time of such determination at
its principal amount (without regard to accrued
interest).
10
<PAGE>
(4) Long-Term Interest Rate. The Remarketing Agent
will set a Long-Term Interest Rate on a date no more than 15
days before the beginning of any period (a "Long-Term
Interest Rate Period") in which interest on any of the Bonds
will be payable at a Long-Term Interest Rate. The last day
of each such Long-Term Interest Rate Period shall be
determined by the Company in accordance with Section
2.02(b)(1). Each Long-Term Interest Rate will be the
minimum rate necessary (as determined by the Remarketing
Agent based on the examination of tax-exempt obligations
comparable to the Bonds known by the Remarketing Agent to
have been priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell the Bonds on
the effective date of the Long-Term Interest Rate at their
principal amount (without regard to accrued interest).
(5) Failure of Remarketing Agent to Announce Interest
Rates on the Bonds. If the appropriate interest rate or
Commercial Paper Period is not or cannot be determined for
whatever reason, the method of determining interest on the
Bonds shall be automatically converted to the Weekly Rate
(without the necessity of complying with the requirements of
Section 2.02(b)) and the interest rate shall be equal to the
J.J. Kenny Index, or such other index (or percentage of an
index) deemed appropriate for tax-exempt securities of the
nature of the Bonds as the Remarketing Agent, with the
consent of the Trustee, may have previously selected, until
such time as the method of determining interest on the Bonds
can be changed in accordance with Section 2.02(b); provided,
that if the Bonds are then in a Long-Term Interest Rate
Period, the Bonds shall bear interest at a Weekly Rate, but
only if a Favorable Opinion of Tax Counsel with respect to
the change to a Weekly Rate has been delivered to the
Trustee. If such Favorable Opinion of Tax Counsel has not
been delivered, the Bonds shall remain in a Long-Term
Interest Rate Period with an interest rate equal to the
interest rate for the prior Long-Term Interest Rate Period
and with a duration equal to the prior Long-Term Interest
Rate Period (or, if earlier, a Long-Term Interest Rate
Period ending on the day before the Maturity Date for such
Bond). The Trustee shall promptly notify the Bondholders of
any such automatic change as set forth in Section 2.02(c).
While Bonds are in a Commercial Paper Mode, during any
transition period caused by an automatic conversion of such
Bonds to a Weekly Rate in accordance with this
Subsection (5), Bonds bearing interest at a Weekly Rate and
Bonds bearing interest at a Commercial Paper Rate, as
applicable, shall be governed by the provisions of this
Indenture applicable to such methods of determining interest
on the Bonds.
11
<PAGE>
(b) (1) Change in Interest Rate Determination Method. The
Company may change the method of determining the interest rate on
the Bonds by notifying the Issuer, the Trustee, the Remarketing
Agent and, if a Book-Entry System is then in effect for the
Bonds, the Securities Depository. Such notice shall contain
(a) the effective date, (b) the proposed interest rate
determination method, and (c) if the change is to a Long-Term
Interest Rate or Rates, the last day of the first such Long-Term
Interest Rate Period and, at the option of the Company, the
effective date and last day of any successive Long-Term Interest
Rate Periods (which last day for each Long-Term Interest Rate
Period must be either the day before the Maturity Date for such
Bonds or a day which is before a Business Day and is at least 365
days after the effective date). The Long-Term Interest Rate
Period shall be the same duration for all of the Bonds. The
notice must be accompanied by a Favorable Opinion of Tax Counsel,
except as described below. If the Company's notice complies with
this paragraph, and if the Company shall deliver a confirming
Opinion of Tax Counsel on the effective date as specified in the
notice, the interest rate on the Bonds will be payable at the new
rate on the effective date specified in the notice until there is
another change as provided in this Section. Notwithstanding
anything in this Indenture to the contrary, the Company must
deliver a Favorable Opinion of Tax Counsel whenever there is a
change from a period during which the interest rate on the Bonds
is set at intervals of 365 days or less to a period during which
the interest rate on the Bonds is set at intervals in excess of
365 days, or vice versa.
If the Company wishes to designate successive Long-Term
Interest Rate Periods without specifying the effective dates and
last days as described in the preceding paragraph for the second
or any subsequent Long-Term Interest Rate Periods, it may do so
by following the same procedure as for a change in the interest
rate determination method as provided in the foregoing paragraph.
If, 30 days before the end of a Long-Term Interest Rate
Period, the Company has not provided for the next interest rate
period, a new Long-Term Interest Rate Period of the same duration
will follow (or if shorter, a Long-Term Interest Rate Period
ending on the day before the Maturity Date for the Bonds).
When one Long-Term Interest Rate Period follows another, all
provisions of this Indenture applying to a change in the interest
rate determination method will apply, except:
(A) the redemption described under "Mandatory
Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds" in the Bonds;
(B) the Company will not be required to deliver a
Favorable Opinion of Tax Counsel if a new Long-Term Interest
12
<PAGE>
Rate Period begins as a result of the Company failing to
provide for the next interest rate period; and
(C) the Company will not be required to deliver a
Favorable Opinion of Tax Counsel if the Company has
previously designated a series of successive Long-Term
Interest Rate Periods which, together with the current Long-
Term Interest Rate Period, are substantially equal in
length, and if a Favorable Opinion of Tax Counsel was
delivered before the first such Long-Term Interest Rate
Period in that series which applies to each such successive
Long-Term Interest Rate Period.
(2) Limitations. Any change in the method of determining
interest on the Bonds pursuant to paragraph (1) above must comply
with the following:
(i) the effective date of a change (or each effective
date in the case of a change from a Commercial Paper Mode)
shall be a Business Day which is at least 15 days (30 days
if a Long-Term Interest Rate is then in effect and the
effective date is before the day after the last day of a
Long-Term Interest Rate Period) after the twelfth Business
Day after receipt by the Trustee of the Company's notice of
the change;
(ii) if a Long-Term Interest Rate is then in effect, the
effective date of any change must be either the day after
the last day of the then current Long-Term Interest Rate
Period or, except as described in clause (iii) below, a day
on which the Bonds would otherwise be subject to redemption
under the paragraph "Optional Redemption at a Premium During
Long-Term Interest Rate Period" in Section 8 of the Bonds if
the change did not occur;
(iii) if the Company has previously designated successive
Long-Term Interest Rate Periods, the effective date of each
Long-Term Interest Rate Period must be the day after the
last day of the previous Long-Term Interest Rate Period;
(iv) if a Commercial Paper Mode is then in effect, the
effective date of any change must be either the day after
the last day of the Commercial Paper Mode or, as to any
Bond, the day after the last day of the Commercial Paper
Period then in effect (or to be in effect) with respect to
that Bond;
(v) if any Bonds have been called for redemption and the
redemption has not yet occurred, the effective date of the
change cannot be before such redemption date;
13
<PAGE>
(vi) if a Long-Term Interest Rate or a Daily Rate is then
in effect, the effective date of any change cannot occur
during the period after a Record Date and to, but not
including, the related Interest Payment Date; and
(vii) if a Commercial Paper Mode is then in effect, the
Remarketing Agent shall determine Commercial Paper Periods
of such duration that will, in the judgment of the
Remarketing Agent, best promote an orderly transition on the
effective date. After the receipt by the Trustee of the
Company's notice of such change, the day after the last day
of each Commercial Paper Period shall be, with respect to
such Bond, the effective date of the change. The
Remarketing Agent shall promptly give written notice of each
such last date and each such effective date with respect to
each Bond to the Issuer, the Company, and the Trustee.
During any such transition period, Bonds bearing
interest at a Commercial Paper Rate shall be governed by the
provisions of this Indenture applicable to a Commercial
Paper Mode and Bonds bearing interest at a Daily Rate,
Weekly Rate or Long-Term Interest Rate, as applicable, shall
be governed by the provisions of this Indenture applicable
to such methods of determining interest on the Bonds.
(c) Notice to Bondholders of Change in Interest Rate
Determination Method. When a change in the interest rate
determination method is to be made, or upon commencement of a new
Long-Term Interest Rate Period, the Trustee will, upon notice
from the Company pursuant to Section 2.02(b), notify the
Bondholders by first class mail at least 15 days before the
effective date (or each effective date in the case of an
adjustment from a Commercial Paper Mode) of the change, except
that such notice shall be given at least 30 days prior to the
effective date if a Long-Term Interest Rate is in effect and the
effective date is on or before the end of the Long-Term Interest
Rate Period. The notice shall be effective when sent and shall
state:
(1) that the interest rate determination method will
be changed and what the new method will be,
(2) the effective date of the new rate, and
(3) that a mandatory redemption or mandatory purchase
in lieu of redemption will result on the effective date of
the change as provided in the Bonds and all the information
required by this Indenture to be included in a notice of
redemption set forth in Section 3.04.
The information required in any notice pursuant to this
subsection (c) and the information referred to in any redemption
14
<PAGE>
notice (including an Additional Notice) pursuant to Section 3.04
may be combined in a single notice if it is sent to Bondholders
in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
(d) Calculation of Interest. The Remarketing Agent shall
provide the Trustee and the Company with notice in writing or by
telephone (any such notice by telephone to be delivered to a
Responsible Officer of the Trustee) promptly confirmed by
facsimile transmission by 12:30 p.m., New York City time,
(1) on the first Business Day after a month in which
interest on the Bonds was payable at a Daily Rate, of the
Daily Rate for each day in such month,
(2) on each day on which a Weekly Rate becomes
effective, of the Weekly Rate,
(3) on the first day of each Commercial Paper Period,
of the length thereof and the Commercial Paper Rate, and, if
there is more than one Commercial Paper Rate then in effect,
of the related applicable principal amounts,
(4) on the first Business Day of a Long-Term Interest
Rate Period, of the Long-Term Interest Rate or Long-Term
Interest Rates set for that period and the related
applicable principal amounts, and
(5) on any Business Day preceding any redemption or
purchase date, any interest rate requested by the Trustee in
order to enable it to calculate the accrued interest, if
any, due on such redemption or purchase date.
Using the rates supplied by this notice, the Trustee will
calculate the interest payable on the Bonds. The Remarketing
Agent will inform the Trustee and the Company orally at the oral
request of either of them of any interest rate set by the
Remarketing Agent. The Trustee will confirm the effective
interest rate by telephone or in writing to any Bondholder who
requests it in any manner.
The setting of the rates and the determination of Commercial
Paper Periods by the Remarketing Agent and the calculation of
interest payable on the Bonds by the Trustee as provided in this
Indenture will be conclusive and binding on the Issuer, the
Company, the Trustee and the owners of the Bonds.
(e) Change in Rate Determination Method-Opinions of
Counsel. Notwithstanding any provision of this Section 2.02, no
change shall be made in the interest rate determination method at
the direction of the Company pursuant to Section 2.02(b)(1)
hereof if the Company shall fail to deliver a Favorable Opinion
15
<PAGE>
of Tax Counsel and confirmation thereof required under
Section 2.02(b)(1). If the Trustee shall have sent any notice to
the Bondholders regarding a change in rate under Section 2.02(c),
then in the event of such failure to deliver such opinion or
confirmation, the Trustee shall promptly notify all Bondholders
of such failure.
(f) Notice to Bondholders of Voluntary Termination of
Credit Agreement. If the Trustee receives notice from the
Company as provided in Section 3.6 of the Agreement to the effect
that the Company intends to terminate the Credit Agreement prior
to its stated termination date, the Trustee shall notify the
Bondholders by first class mail at least 15 Business Days prior
to the effective date of such termination. The notice shall be
effective when sent and shall state:
(1) that the Company has notified the Trustee that it
intends to terminate the Credit Agreement;
(2) the effective date of such termination; and
(3) if the interest is then payable at a Daily Rate
or a Weekly Rate, that the Bondholders have the right to
tender Bonds to the Trustee for purchase as provided in
Section 6 of the form of the Bonds set out in Exhibit A
hereto.
Section 2.03. Execution and Authentication. The Bonds shall
be signed on behalf of the Issuer with the manual or facsimile
signature of its Chairman or Vice Chairman and attested by the
manual or facsimile signature of its Secretary or Assistant
Secretary, and the seal of the Issuer shall be impressed or
imprinted on the Bonds by facsimile or otherwise. All authorized
facsimile signatures shall have the same effect as if manually
signed. If an officer of the Issuer whose signature is on a Bond
no longer holds that office at the time the Trustee authenticates
the Bond, the Bond shall nevertheless be valid. Also, if a
person signing a Bond is the proper officer on the actual date of
execution, the Bond shall be valid even if that person is not the
proper officer on the nominal date of action.
A Bond shall not be valid for any purpose under this
Indenture until the Trustee manually signs the certificate of
authentication on the Bond. Such signature shall be conclusive
evidence that the Bond has been authenticated under this
Indenture.
As a precondition to the initial authentication and delivery
of the Bonds, the Trustee shall receive a request and
authorization to the Trustee from the Issuer, signed by the
Chairman or Vice Chairman of the Issuer, to authenticate and
16
<PAGE>
deliver the Bonds to the persons and in the manner therein
described.
Section 2.04. Bond Register. Bonds must be presented at
the principal corporate trust office of the Trustee for
registration, registration of transfer, exchange and payment.
Bonds tendered by their holders must be delivered as specified in
the Bonds. The Trustee shall keep a register of Bonds and of
their registration of transfer and exchange, which register shall
be open to inspection by the Issuer and the Company during normal
business hours.
Section 2.05. Registration and Exchange of Bonds; Persons
Treated as Owners. Bonds may be registered as transferred only
on the register maintained by the Trustee. Upon surrender for
registration of transfer of any Bond to the Trustee, duly
endorsed for transfer or accompanied by an assignment duly
executed by the holder or the holder's attorney duly authorized
in writing, the Trustee will authenticate a new Bond or Bonds of
the same maturity, in an equal total principal amount and
registered in the name of the transferee.
Bonds may be exchanged for an equal total principal amount
of Bonds of the same maturity but of different authorized
denominations. The Trustee will authenticate and deliver Bonds
that the Bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding.
Except in connection with the purchase of Bonds tendered for
purchase or purchased in lieu of redemption, the Trustee will not
be required to register the transfer of or to exchange any Bond
called for redemption or during the period beginning 15 days
before the mailing of notice calling the Bonds or any portion of
the Bonds for redemption and ending on the redemption date.
The registered owner of a Bond shall be treated as the
absolute owner of the Bond for all purposes, and payment of
principal, interest or purchase price shall be made only to or
upon the written order of the holder or the holder's legal
representative, notwithstanding any notice, actual or
constructive, to the contrary.
The Trustee will require the payment by a Bondholder
requesting exchange or registration of transfer of any tax or
other governmental charge required to be paid in respect of the
exchange or registration of transfer but will not impose any
other charge.
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds. If any Bond is mutilated, lost, stolen or
destroyed, the Trustee will authenticate a new Bond of the same
denomination with similar terms if any mutilated Bond shall first
17
<PAGE>
be surrendered to the Trustee, and if, in the case of any lost,
stolen or destroyed Bond, there shall first be furnished to the
Issuer, the Trustee and the Company evidence of such loss, theft
or destruction, together with an indemnity, satisfactory to them.
If the Bond has matured or become subject to redemption or
purchase, instead of issuing a replacement Bond, the Trustee may
with the consent of the Company pay the Bond without requiring
surrender of the Bond and make such requirements as the Trustee
deems fit for its protection, including a lost instrument bond.
The Issuer, the Company and the Trustee may charge their
reasonable fees and expenses in this connection.
If a Bond is called for redemption and the Company elects to
purchase the Bond in lieu of redemption as provided in
Article III, or if the holder of a Bond gives irrevocable
instructions to the Remarketing Agent for purchase, and in each
case funds are deposited with the Trustee sufficient for the
purchase, the Trustee upon request of the Company or the
Remarketing Agent will authenticate a new Bond in the same
maturity and in the same denomination registered as the Company
or the Remarketing Agent may direct and deliver it to the Company
or upon the Company's order, whether or not the Bond purchased or
called for redemption is ever delivered, and the undelivered
Bonds shall be cancelled on the books of the Trustee, whether or
not said undelivered Bonds have been delivered to the Trustee.
From and after the purchase date, interest on such Bond shall
cease to be payable to the prior holder thereof, such holder
shall cease to be entitled to the benefits or security of this
Indenture and shall have recourse solely to the funds held by the
Trustee for the purchase of such Bond and the Trustee shall not
register any further transfer of such Bond by such prior holder.
All funds held by the Trustee for the purchase of undelivered
Bonds shall be held uninvested.
Section 2.07. Cancellation of Bonds. Whenever a Bond is
delivered to the Trustee for cancellation (upon payment,
redemption or otherwise), or for registration of transfer,
exchange or replacement pursuant to Section 2.05 or Section 2.06,
the Trustee will promptly cancel and dispose of the Bond in
accordance with the Trustee's policy of disposal; provided,
however, that the Trustee shall not be required to destroy
cancelled Bonds.
Section 2.08. Temporary Bonds. Until definitive Bonds are
ready for delivery, the Issuer may execute and the Trustee will
authenticate temporary Bonds substantially in the form of the
definitive Bonds, with appropriate variations. The Issuer will,
without unreasonable delay, prepare and the Trustee will
authenticate definitive Bonds in exchange for the temporary
Bonds. Such exchange shall be made by the Trustee without charge.
18
<PAGE>
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee. If the Company wishes
that any Bonds be redeemed pursuant to any optional redemption
provision in the Bonds, the Company will notify the Trustee of
the applicable provision, the redemption date, the principal
amount of the Bonds to be redeemed and other necessary particu-
lars in accordance with Section 4.7 of the Agreement.
Section 3.02. Redemption Dates. The redemption date of
Bonds to be redeemed pursuant to any optional redemption
provision in the Bonds will be a date permitted by the Bonds and
specified by the Company in the notice delivered pursuant to
Section 4.7 of the Agreement. The redemption date for mandatory
redemptions will be as specified in the Bonds to be redeemed or
determined by the Trustee consistently with the provisions of the
Bonds.
Section 3.03. Selection of Bonds to Be Redeemed. Except as
provided in the Bonds, if fewer than all the Bonds are to be
redeemed, the Trustee will select the Bonds to be redeemed by lot
or other method it deems fair and appropriate, except that the
Trustee will first select any Bonds owned by the Company or any
of its nominees or held by the Trustee for the account of the
Company or any of its nominees. The Trustee will make the
selection from Bonds not previously called for redemption. For
this purpose, the Trustee will consider each Bond in a
denomination larger than the minimum denomination permitted by
the Bonds at the time to be separate Bonds each in the minimum
denomination. Provisions of this Indenture that apply to Bonds
called for redemption also apply to portions of Bonds called for
redemption.
Section 3.04. Redemption Notices.
(a) Official Notice of Redemption. The Trustee will give
notice of each redemption as provided in the Bonds and will at
the same time give a copy of the notice to the Remarketing Agent,
provided that no redemption notice shall be given with respect to
a redemption under "Mandatory Redemption on Each Interest Payment
Date During Commercial Paper Mode" in Section 8 of the form of
the Bonds. The notice shall identify the Bonds to be redeemed
and shall state (1) the redemption date (and, if the Bonds
provide that accrued interest will not be paid on the redemption
date, the date it will be paid), (2) the redemption price,
(3) that the Bonds called for redemption must be surrendered to
collect the redemption price, (4) the address at which the Bonds
must be surrendered and (5) that interest on the Bonds called for
redemption ceases to accrue on the redemption date.
19
<PAGE>
With respect to an optional redemption of any Bonds under
"Optional Redemption at a Premium During Long-Term Interest Rate
Period," "Extraordinary Optional Redemption" or "Optional Redemp-
tion During Daily or Weekly Rate Period" in Section 8 of the form
of the Bonds, unless moneys sufficient to pay the principal of,
redemption premium, if any, and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the
giving of such notice of redemption, such notice may state that
said redemption shall be conditional upon the receipt of such
moneys by the Trustee on or prior to the date fixed for
redemption. If such moneys are not received, such notice shall
be of no force and effect, the Issuer shall not redeem such
Bonds, the redemption price shall not be due and payable, and the
Trustee shall give notice, in the same manner in which the notice
of redemption was given, that such moneys were not so received
and that such Bonds will not be redeemed.
Failure to give any required notice of redemption as to any
particular Bonds or any defect therein will not affect the
validity of the call for redemption of any Bonds in respect of
which no such failure or defect has occurred. Any notice mailed
as provided in the Bonds shall be effective when sent and will be
conclusively presumed to have been given whether or not actually
received by any holder.
(b) Additional Notice of Redemption. In addition to the
redemption notice required above, if there is not a Book-Entry
System in effect for the Bonds, further notice (the "Additional
Notice") shall be given by the Trustee as set out below. No
defect in the Additional Notice nor any failure to give all or
any portion of the Additional Notice shall in any manner defeat
the effectiveness of a call for redemption if notice is given as
prescribed in paragraph (a) above.
(1) Each Additional Notice of redemption shall
contain the information required in paragraph (a) above for
an official notice of redemption plus (i) the CUSIP numbers
of all Bonds being redeemed; (ii) the date of the Bonds as
originally issued; (iii) the interest rate determination
method for, or 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.
(2) Each Additional Notice of redemption shall be
sent at least 30 days before the redemption date by
registered or certified mail or overnight delivery service
(or by such other means as the Trustee may have established
with the securities depository or information service) to
all registered securities depositories then in the business
of holding substantial amounts of obligations similar to the
Bonds (such depositories now being Depository Trust Company
20
<PAGE>
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 obligations such as the Bonds.
The information required in any redemption notice (including
an Additional Notice) pursuant to this Section and the
information required in any notice pursuant to Section 2.02(c)
may be combined in a single notice if it is sent to Bondholders
in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
Section 3.05. Payment of Bonds Called for Redemption. Upon
surrender to the Trustee, Bonds called for redemption shall be
paid or purchased in lieu of redemption as provided in this
Article at the redemption price stated in the notice, plus
interest accrued to the redemption date, or at a purchase price
as provided in the form of Bond, except that interest payable on
Bonds bearing interest at a Daily Rate will be paid on the fifth
Business Day following the redemption date. Bonds called for
redemption and purchased pursuant to a tender before the
redemption date will not be redeemed but will be dealt with as
provided below in this Article. Upon the payment of the
redemption price of the 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 3.06. Bonds Redeemed in Part. Subject to
Article V, upon surrender of a Bond redeemed or purchased in lieu
of redemption in part, the Trustee will authenticate for the
holder a new Bond or Bonds in authorized denominations equal in
principal amount to the unredeemed or unpurchased portion of the
Bond surrendered.
Section 3.07. Purchase of Bonds in Lieu of Redemption.
When Bonds are called for redemption pursuant to the paragraphs
captioned, "Mandatory Redemption at Beginning of a New Long-Term
Interest Rate Period" or "Mandatory Redemption Upon a Change in
the Method of Determining the Interest Rate on the Bonds" in
Section 8 of the form of the Bonds, the Company may purchase some
of or all the Bonds called for redemption for a price equal to
the otherwise applicable redemption price, if it (or the
Remarketing Agent) gives written notice to the Trustee by 5:00
p.m. New York City time on the day before the redemption date
that it wishes to purchase the Bonds the principal amount of
which is specified in the notice and furnishes the Trustee
sufficient money in sufficient time for the Trustee to make the
purchase on the redemption date. The Trustee will purchase Bonds
called for redemption pursuant to the paragraph captioned
21
<PAGE>
"Mandatory Redemption on Each Interest Payment Date During
Commercial Paper Mode" unless otherwise instructed in writing by
the Company, or unless the Indenture otherwise requires that they
be redeemed and cancelled, before the redemption date. The
Trustee will purchase the Bonds pursuant to this Section only as
provided in Section 4.02.
Section 3.08. Disposition of Purchased Bonds. (a) Bonds to
be Remarketed. Bonds purchased pursuant to tenders as provided
in the form of Bonds or in lieu of redemption as provided in the
foregoing Section will be offered for sale by the Remarketing
Agent as provided in this Section except as follows:
(1) Bonds purchased pursuant to a tender after having
been called for redemption under a provision in the form of
Bond that does not provide the Company an option to purchase
in lieu of redemption will be canceled.
(2) Bonds called for redemption under "Mandatory
Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds" in Section 8 of the form of
Bond, which are tendered between the date notice of
redemption is given and the redemption date, may be
remarketed before the redemption date only if the buyer
receives a copy of the redemption notice from the
Remarketing Agent.
(3) Bonds will not be offered for sale under this
Section during the continuance of an Event of Default under
Section 8.01(a), (b), (c) or (d). Bonds will be offered for
sale under this Section during the continuance of any other
Event of Default or an event which with the passage of time
or the giving of notice or both may become an Event of
Default only in the sole discretion of the Remarketing
Agent.
(b) Remarketing Effort. Except to the extent the Company
directs the Remarketing Agent not to do so, the Remarketing Agent
will offer for sale and use reasonable efforts to sell all Bonds
to be sold as provided in paragraph (a) above and, when directed
by the Company, any Bonds held by the Company. The sale price of
each Bond must be equal to the principal amount of each Bond plus
accrued interest to the purchase date. The Company may direct
the Remarketing Agent from time to time to cease and to resume
sales efforts with respect to some of or all the Bonds. The
Remarketing Agent may buy as principal any Bonds to be offered
under this Section.
(c) Notices in Respect of Tenders. When the Trustee
receives a notice from a Bondholder (or a Beneficial Owner
through its direct Participant) as specified in paragraph 6 of
the form of the Bond for the Bondholder (or a Beneficial Owner
22
<PAGE>
through its direct Participant) to tender Bonds, the Trustee will
promptly notify the Remarketing Agent and the Company by
facsimile transmission or telephone, promptly confirmed in
writing, of the receipt of such notice, but in no event later
than the following times:
(i) when the Bonds bear interest at a Daily Rate, no
later than 11:15 a.m. (New York City time) on the same
Business Day; and
(ii) when the Bonds bear interest at a Weekly Rate, no
later than 11:15 a.m. (New York City time) on the Business
Day next succeeding receipt of such notice.
(d) Delivery of Remarketed Bonds.
(i) Except when a book-entry system of registration is in
effect, the Trustee shall hold all Bonds delivered pursuant
to this Section in trust for the benefit of the owners
thereof until moneys representing the purchase price of such
Bonds shall have been delivered to or for the account of or
to the order of such Bondholders, and thereafter, if such
Bonds are remarketed, shall deliver replacement Bonds,
prepared by the Trustee in accordance with the directions of
the Remarketing Agent and authenticated by the Trustee, for
any Bonds purchased in accordance with the written
directions of the Remarketing Agent to the Remarketing Agent
for delivery to the purchasers thereof.
(ii) The Remarketing Agent shall advise the Trustee and
the Company in writing or by facsimile transmission of the
principal amount of Bonds which have been remarketed,
together with the denominations and registration
instructions (including taxpayer identification numbers) in
accordance with the following schedule (all times of which
are New York City time):
CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION
DETERMINATION OR, IN CONNECTION TO BE FURNISHED
WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE
NEW METHOD OF INTEREST RATE
DETERMINATION
Commercial Paper Period 12:15 p.m. on the purchase date
Daily Rate Period 12:15 p.m. on the purchase date
Weekly Rate Period 12:15 p.m. on the purchase date
Long -Term Interest Rate Period 12:15 p.m. on the purchase date
23
<PAGE>
(iii) The terms of any sale by the Remarketing Agent shall
provide for the authorization of the payment of the purchase
price by the Remarketing Agent to the Trustee in exchange
for Bonds registered in the name of the new Bondholder which
shall be delivered by the Trustee to the Remarketing Agent
at or before 2:00 p.m. (New York City time) on the purchase
date if the purchase price has been received from the
Remarketing Agent by the time set forth in Section 3.08(e)
on the purchase date.
(e) Delivery of Proceeds of Sale. The Remarketing Agent
shall deliver directly to the Trustee an amount equal to the
principal amount thereof plus accrued interest, if any, of the
Bonds which the Remarketing Agent has advised the Trustee have
been remarketed pursuant to Section 3.08(d)(ii) no later than
12:30 p.m. (New York City time) on the purchase date.
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds. The Issuer will
cause the proceeds of the initial sale of the Bonds to be
deposited with the Trustee. On a date or dates to be designated
by the Company the Trustee will disburse the proceeds of the
initial sale of the Bonds and any investment earnings thereon to
the Refunded Bonds Trustees for deposit in the bond fund under
the related Prior Indenture, to be applied to pay the redemption
price of the Refunded Bonds upon call for redemption.
Pursuant to Section 3.1 of the Agreement, the Company has
agreed to pay to the Refunded Bonds Trustees the amount in excess
of the proceeds of the Bonds needed to pay the redemption price
of the Refunded Bonds
Section 4.02. Payment of Bonds. The Trustee will make
payments of principal of, premium, if any, and interest on the
Bonds from moneys available to the Trustee under this Indenture
for that purpose. The Trustee will pay the purchase price of
tendered Bonds first from the proceeds of the sale of Bonds under
Section 3.08 and second from other moneys available to the
Trustee for that purpose.
All moneys received as proceeds of remarketing the Bonds
under Section 3.08 shall be held segregated by the Trustee in a
separate and segregated trust account. To the extent that the
payment of principal or interest on the Bonds is made from moneys
as described in this Section, such payment shall also satisfy and
discharge any payment obligation of the Company under the Note or
the First Mortgage Bonds and the Trustee shall promptly notify
the Company and the Mortgage Trustee in writing if such payment
requirement has not been satisfied. If any Bond is redeemed
24
<PAGE>
prior to maturity or if the Company surrenders any Bond to the
Trustee for cancellation, the Trustee shall cancel such Bond and
surrender to the Company First Mortgage Bonds in a principal
amount and maturing on the date corresponding to the Bond so
redeemed or otherwise cancelled. The Trustee shall promptly give
notice to the Mortgage Trustee of any such redemption or
cancellation of a portion of the First Mortgage Bond.
Section 4.03. Investments of Moneys. The Trustee will
invest and reinvest moneys held by the Trustee as directed by the
Company to the extent permitted by law, in:
(a) Government Obligations;
(b) Bonds and notes of the Federal Land Bank;
(c) Obligations of the Federal Intermediate Credit Bank;
(d) Obligations of the Federal Bank for Cooperatives;
(e) Bonds and notes of Federal Home Loan Banks;
(f) Negotiable or non-negotiable certificates of deposit,
time deposits or similar banking arrangements, issued by a bank
or trust company (which may be the commercial banking department
of the Trustee or any bank or trust company under common control
with the Trustee) or savings and loan association which are
insured by the Federal Deposit Insurance Corporation or secured
as to principal by Government Obligations; or
(g) Other investments then permitted by law.
The Trustee may make investments permitted by this Article
through its own bond department or the bond department of any
bank or trust company under common control with the Trustee.
Investments will be made so as to mature or be subject to redemp-
tion at the option of the holder on or before the date or dates
that the Trustee anticipates that moneys from the investments
will be required. The Trustee, when authorized by the Company,
may trade with itself in the purchase and sale of securities for
such investment. Investments will be registered in the name of
the Trustee and held by or under the control of the Trustee. The
Trustee will sell and reduce to cash a sufficient amount of
investments whenever the cash held by the Trustee is
insufficient. The Trustee shall not be liable for any loss from
such investments to the extent directed by the Company and to the
extent such directions have been complied with by the Trustee.
Section 4.04. Moneys Held in Trust; Unclaimed Funds. The
Trustee shall deposit into a separate segregated trust account
for the benefit of the Bondholders all moneys received by it for
any payment on the Bonds. The proceeds of the initial sale of
25
<PAGE>
the Bonds shall be held in a separate and segregated account by
the Trustee until disbursed as described in Section 4.01. Money
received by the Remarketing Agent or the Trustee from the sale of
a Bond under Section 3.08 or for the purchase of a Bond will be
held segregated from other funds of the Remarketing Agent or the
Trustee in trust for the benefit of the person from whom such
Bond was purchased or the person delivering such purchase money,
as the case may be, and will not be invested. The Trustee shall
promptly, but in no event later than 30 days of their original
deposit, apply moneys received from the Company in accordance
with this Indenture and as directed by the Company.
Notwithstanding the provisions of the immediately preceding
paragraph, any moneys which shall be set aside by the Trustee or
deposited by the Trustee with the paying agents and which shall
remain unclaimed by the holders of such Bonds for a period of six
(6) years after the date on which such Bonds shall have become
due and payable shall upon request in writing be paid to the
Company or to such officer, board or body as may then be entitled
by law to receive the same, and thereafter the holders of such
Bonds shall look only to the Company or to such officer, board or
body, as the case may be, for payment and then only to the extent
of the amount so received without any interest thereon, and the
Trustee, the Issuer and the paying agents shall have no
responsibility with respect to such moneys.
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System. The Bonds shall be
initially issued in the name of Cede & Co., as nominee for The
Depository Trust Company as the initial Securities Depository and
registered owner of such Bonds, and held in the custody of the
Securities Depository. A single certificate will be issued and
delivered to the Securities Depository for the Bonds. The
Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as the
Securities Depository shall continue to serve as securities
depository for such Bonds as provided herein, all transfers of
beneficial ownership interests will be made by book-entry only on
the records of the Securities Depository, and no investor or
other party purchasing, selling or otherwise transferring
beneficial ownership of such Bonds is to receive, hold or deliver
any Bond certificate. The Issuer, the Company and the Trustee
will recognize the Securities Depository or its nominee as the
Bondholder of such Bonds for all purposes, including payment,
notices and voting.
The Issuer and the Trustee covenant and agree, so long as
The Depository Trust Company shall continue to serve as
26
<PAGE>
Securities Depository for the Bonds, to meet the requirements of
The Depository Trust Company with respect to required notices and
other provisions of the Letter of Representations among The
Depository Trust Company, the Issuer, the Trustee, the Company
and the Remarketing Agent, executed with respect to the Bonds.
The Issuer, the Trustee, the Company and the Remarketing
Agent may conclusively rely upon (i) a certificate of the
Securities Depository as to the identity of the Participants in
the Book-Entry-System and (ii) a certificate of any such
Participant as to the identity of, and the respective principal
amount of Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial
ownership thereof is determined by a book-entry at the Securities
Depository, the requirements in this Indenture of holding,
delivering or transferring Bonds shall be deemed modified to
require the appropriate person to meet the requirements of the
Securities Depository as to registering or registering the
transfer of the book-entry to produce the same effect. Any
provision hereof permitting or requiring delivery of Bonds shall,
while the Bonds are in a Book-Entry System, be satisfied by the
notation on the books of the Securities Depository in accordance
with applicable law.
The Trustee and the Issuer, at the direction and expense of
the Company and with the consent of the Remarketing Agent, may
from time to time appoint a successor Securities Depository and
enter into an agreement with such successor Securities Depository
to establish procedures with respect to the Bonds consistent with
current industry practice. Any successor Securities Depository
shall be a "clearing agency" registered under Section 17A of the
Securities Exchange Act of 1934, as amended.
None of the Issuer, the Company, the Trustee nor the
Remarketing Agent will have any responsibility or obligation to
any Securities Depository, any Participants in the Book-Entry
System or the Beneficial Owners with respect to (i) the accuracy
of any records maintained by the Securities Depository or any
Participant; (ii) the payment by the Securities Depository or by
any Participant of any amount due to any Beneficial Owner in
respect of the principal amount or redemption or purchase price
of, or interest on, any Bonds; (iii) the delivery of any notice
by the Securities Depository or any Participant; (iv) the
selection of the Beneficial Owners to receive payment in the
event of any partial redemption of the Bonds; or (v) any other
action taken by the Securities Depository or any Participant.
Bond certificates are required to be delivered to and
registered in the name of the Beneficial Owner, under the
following circumstances:
27
<PAGE>
(a) The Securities Depository determines to
discontinue providing its service with respect to the Bonds
and no successor Securities Depository is appointed as
described above. Such a determination may be made at any
time by giving 30 days' notice to the Issuer, the Company
and the Trustee and discharging its responsibilities with
respect thereto under applicable law.
(b) The Company determines not to continue the Book-
Entry System through a Securities Depository.
The Trustee is hereby authorized to make such changes to the
form of bond attached hereto as Exhibit A which are necessary or
appropriate to reflect that the Book-Entry System is not in
effect, that a successor Securities Depository has been appointed
or that an additional or co-paying agent or tender agent has been
designated pursuant to Section 13.03 hereof.
If at any time, the Securities Depository ceases to hold the
Bonds all references herein to the Securities Depository shall be
of no further force or effect.
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds. The Issuer will promptly
pay the principal of, premium, if any, and interest on, and other
amounts due with respect to, the Bonds on the dates and in the
manner provided in the Bonds, but only from the amounts assigned
to and held by the Trustee under this Indenture. Neither the
State of Georgia, nor any political subdivision thereof
(including Monroe County) shall be obligated to pay the principal
of the Bonds, or the premium, if any, or interest thereon or
other costs incidental thereto, the same being payable solely
from the revenues and receipts hereinabove referred to. Neither
the faith and credit nor the taxing power of the State of Georgia
or any political subdivision thereof (including Monroe County) is
pledged to the payment of the principal of the Bonds, or the
premium, if any, or interest thereon, or the costs incidental
thereto.
Section 6.02. Performance of Covenants; Issuer. The Issuer
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The Issuer covenants that it is
duly authorized under the Constitution and laws of the State of
Georgia, including particularly and without limitation the Act,
to issue the Bonds authorized hereby and to execute this
Indenture, to assign and pledge the Note and the Agreement and
28
<PAGE>
the amounts payable under the Note and the First Mortgage Bonds,
and to pledge the amounts hereby pledged in the manner and to the
extent herein set forth; that all action on its part necessary
for the issuance of the Bonds and the execution and delivery of
this Indenture has been duly and effectively taken; and that the
Bonds in the hands of the owners thereof are and will be valid
and enforceable obligations of the Issuer according to the terms
thereof and hereof.
Section 6.03. Recording and Filing; Further Assurances.
The Issuer will execute and deliver such supplemental indentures
and such further instruments, and do such further acts, as the
Trustee may reasonably require for the better assuring, assigning
and confirming to the Trustee the amounts assigned under this
Indenture for the payment of the Bonds. The Issuer further
covenants that it will not create or suffer to be created any
lien, encumbrance or charge upon its interest in the Note, the
First Mortgage Bonds or the Agreement, if any, except the lien of
this Indenture.
Section 6.04. Tax Covenants. The Issuer covenants that it
shall take no action nor make any investment or use of the
proceeds of the Bonds or any other moneys which would cause the
Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Code to the extent that the same may be
applicable or proposed to be applicable to the Bonds at the time
of such action, investment or use.
Notwithstanding any provision of this Indenture to the
contrary, the Trustee shall not be liable or responsible for any
calculation or determination which may be required in connection
with, or for the purpose of complying with, Section 148 of the
Code, or any successor statute or any regulation, ruling or other
judicial or administrative interpretation thereof, including,
without limitation, the calculation of amounts required to be
paid to the United States of America or the determination of the
maximum amount which may be invested in nonpurpose obligations
having a yield higher than the yield on the Bonds, and the
Trustee shall not be liable or responsible for monitoring the
compliance by the Issuer or the Company with any of the
requirements of Section 148 of the Code or any applicable
regulation, ruling or other judicial or administrative
interpretation thereof; it being acknowledged and agreed that the
sole obligation of the Trustee with respect to the investment of
monies held under any fund or account created hereunder shall be
to invest such monies in accordance with Section 4.03 hereof in
each case pursuant to the instructions received by the Trustee in
accordance with Section 4.03 hereof.
Section 6.05. Rights Under Agreement. The Agreement, a duly
executed counterpart of which has been filed with the Trustee,
sets forth the covenants and obligations of the Issuer and the
29
<PAGE>
Company, and reference is hereby made to the same for a detailed
statement of said covenants and obligations of the Company
thereunder; and the Issuer agrees that the Trustee in its own
name or in the name of the Issuer may enforce all rights of the
Issuer and all obligations of the Company under and pursuant to
the Agreement for and on behalf of the Bondholders, whether or
not the Issuer is in default hereunder.
Section 6.06. Designation of Additional Paying Agents. The
Issuer may cause, with the consent of the Company, the necessary
arrangements to be made through the Trustee and to be thereafter
continued for the designation of additional paying agents and for
providing for the payment of such of the Bonds as shall be
presented when due at the corporate trust office of the Trustee,
or its successor in trust hereunder, or at the principal office
of said additional paying agents. All such funds held by said
additional paying agents shall be held by each of them in trust
and shall constitute a part of the trust estate and shall be
subject to the security interest created hereby.
Section 6.07. Existence of Issuer. The Issuer covenants
that it will at all times maintain its corporate existence and
will duly procure any necessary renewals and extensions thereof;
will use its best efforts to maintain, preserve and renew all the
rights, powers, privileges and franchises owned by it; and will
comply with all valid acts, rules, regulations and orders of any
legislative, executive, judicial or administrative body
applicable to the Project.
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture.
Any Bond will be deemed paid for all purposes of this Indenture
when (a) payment of the principal of and interest on the Bond to
the due date of such principal and interest (whether at maturity,
upon redemption or otherwise) or the payment of the purchase
price either (1) has been made in accordance with the terms of
the Bonds or (2) has been provided for by depositing with the
Trustee in trust (A) moneys sufficient to make such payment
and/or (B) Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure,
without any further reinvestment, the availability of sufficient
moneys to make such payment, and (b) all compensation and reason-
able expenses of the Trustee pertaining to each Bond in respect
of which such deposit is made have been paid or provided for to
the Trustee's satisfaction. When a Bond is deemed paid, it will
no longer be secured by or entitled to the benefits of this
Indenture or be an obligation of the Issuer, and shall be payable
solely from the moneys or Government Obligations under (a)(2)
30
<PAGE>
above, except that such Bond may be tendered if and as provided
in the Bonds and it may be registered as transferred, exchanged,
registered, discharged from registration or replaced as provided
in Article II.
Notwithstanding the foregoing, upon the deposit of funds or
Government Obligations under clause (a)(2) of the first paragraph
of this Section, the purchase price of tendered Bonds shall be
paid from the sale of Bonds under Section 3.08. If payment of
such purchase price is not made from the sale of Bonds pursuant
to Section 3.08, payment shall be made from funds (or Government
Obligations) on deposit pursuant to this Section without the need
of any further instruction or direction by the Company, in which
case such Bonds shall be surrendered to the Trustee and
cancelled.
Notwithstanding the foregoing, no deposit under
clause (a)(2) of the first paragraph of this Section shall be
deemed a payment of a Bond until the (1) Company has furnished
the Trustee an Opinion of Tax Counsel to the effect that the
deposit of such cash or Government Obligations will not cause the
Bonds to become "arbitrage bonds" under Section 148 of the Code
and (2) (a) notice of redemption of the Bond is given in
accordance with Article III or, if the Bond is not to be redeemed
or paid within the next 60 days, until the Company has given the
Trustee, in form satisfactory to the Trustee, irrevocable
instructions (i) to notify, as soon as practicable, the owner of
the Bond, in accordance with Article III, that the deposit
required by (a)(2) above has been made with the Trustee and that
the Bond is deemed to be paid under this Article and stating the
maturity or redemption date upon which moneys are to be available
for the payment of the principal of the Bond, and premium, if
any, and interest on such Bond, if the Bond is to be redeemed
rather than paid and (ii) to give notice of redemption not less
than 30 nor more than 60 days prior to the redemption date for
such Bond or (b) the maturity of the Bond.
When all outstanding Bonds are deemed paid under the
foregoing provisions of this Section, the Trustee will upon
request acknowledge the discharge of the lien of this Indenture,
provided, however that the obligations relating to the tender for
purchase as provided in the Bonds and obligations under
Article II in respect of the registration of transfer, exchange,
registration, discharge from registration and replacement of
Bonds shall survive the discharge of the lien of the Indenture.
Section 7.02. Application of Trust Money. The Trustee
shall hold in trust money or Government Obligations deposited
with it pursuant to the preceding Section and shall apply the
deposited money and the money from the Government Obligations in
accordance with this Indenture only to the payment of principal
of, premium, if any, and interest on the Bonds and to the payment
of the purchase price of tendered Bonds.
Section 7.03. Repayment to Company. The Trustee shall
promptly pay to the Company upon request any excess money or
31
<PAGE>
securities held by the Trustee at any time under this Article and
any money held by the Trustee under any provision of this
Indenture for the payment of principal or interest or for the
purchase of Bonds that remains unclaimed for six years.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default. An "Event of Default" is
any of the following:
(a) Default in the payment of any interest on any
Bond when due and as the same shall become due and payable,
which default continues for five days.
(b) Default in the due and punctual payment of
principal on any Bond when due and payable, whether at
maturity, upon redemption, or by declaration or otherwise.
(c) Default in the due and punctual payment of the
purchase price of any Bond required to be purchased in
accordance with its terms.
(d) Acceleration for any reason of the maturity of
all first mortgage bonds issued by the Company under the
Company Indenture, and such acceleration shall not have been
rescinded.
(e) An event of default has occurred and is
continuing under the Agreement.
Section 8.02. Acceleration. Upon the occurrence of an
Event of Default the Trustee may, and upon the written request of
the holders of not less than 25% in aggregate principal amount of
Bonds then outstanding shall, by notice in writing delivered to
the Issuer and the Company, declare the principal of all Bonds
then outstanding and the interest accrued thereon immediately due
and payable; and such principal and interest shall thereupon
become and be immediately due and payable.
If after the principal of the Bonds and the accrued interest
thereon have been so declared to be due and payable, all arrears
of interest and interest on overdue installments of interest (if
lawful) and the principal and premium, if any, on all Bonds then
outstanding which shall have become due and payable otherwise
than by acceleration and all other sums payable under this
Indenture or upon the Bonds, except the principal of, and
interest on, the Bonds which by such declaration shall have
become due and payable, are paid by the Issuer, and the Issuer
also performs all other things in respect of which it may have
been in default hereunder and pays the reasonable charges of the
32
<PAGE>
Trustee, the Bondholders and any trustee appointed under law,
including the Trustee's reasonable attorneys' fees, then, and in
every such case, the Trustee shall annul such declaration and its
consequences, and such annulment shall be binding upon all
holders of Bonds issued hereunder; but no such annulment shall
extend to or affect any subsequent default or impair any right or
remedy consequent thereon. The Trustee shall forward a copy of
any such annulment notice pursuant to this paragraph to the
Issuer and the Company. Immediately upon such annulment, the
Trustee shall cancel, by notice to the Mortgage Trustee, any
demand made by the Trustee pursuant to the Company Indenture.
Section 8.03. Other Remedies. If an Event of Default
occurs and is continuing, subject to Section 8.06, the Trustee,
before or after declaring the principal of the Bonds and the
interest accrued thereon immediately due and payable, may, and
upon request of the holders of at least 25% in principal amount
of the Bonds then outstanding shall, pursue any available remedy
by proceeding at law or in equity available to the Trustee under
the Agreement, the Note or the First Mortgage Bonds to collect
the principal of or interest on the Bonds or the First Mortgage
Bonds or to enforce the performance of any provision of the
Bonds, the Note, this Indenture or the Agreement.
The Trustee, as the assignee of all the right, title and
interest of the Issuer in and to the Agreement and the First
Mortgage Bonds, may enforce each and every right granted to the
Issuer under the Agreement and the First Mortgage Bonds. In
exercising such rights and the rights given the Trustee under
this Article VIII, the Trustee shall take such action as, in the
judgment of the Trustee applying the standards described in
Section 9.01(a) hereof, would best serve the interests of the
Bondholders.
Section 8.04. Legal Proceeding by Trustee. If any Event of
Default has occurred and is continuing, the Trustee in its
discretion may, and upon the written request of the holders of
not less than 25% in principal amount of all Bonds then
outstanding and receipt of indemnity to its satisfaction shall,
in its own name:
(a) by mandamus, or other suit, action or proceeding at law
or in equity, enforce all rights of the Bondholders, including
the right to require the Issuer to enforce any rights under the
Agreement and to require the Issuer to carry out any other
provisions of this Indenture for the benefit of the Bondholder
and to perform its duties under the Act;
(b) bring suit upon the Bonds;
33
<PAGE>
(c) by action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for the
Bondholders; or
(d) by action or suit in equity enjoin any acts or things
which may be unlawful or in violation of the rights of the
Bondholders.
No remedy conferred upon or reserved to the Trustee or to
the Bondholders by the terms of this Indenture is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given to the Trustee or to the Bondholders hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing
upon any default or Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such default
or Event of Default or acquiescence therein; and every such right
and power may be exercised from time to time as often as may be
deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Bondholders, shall extend to or
shall affect any subsequent default or event of default or shall
impair any rights or remedies consequent thereon.
Section 8.05. Appointment of Receivers. Upon the
occurrence and continuance of an Event of Default, and upon the
filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the Bondholders under
this Indenture, the Trustee shall be entitled as a matter of
right to the appointment of a receiver or receivers of the trust
estate with such powers as the court making such appointment
shall confer.
Section 8.06. Waiver of Past Defaults. The holders of a
majority in principal amount of the Bonds then outstanding by
notice to the Trustee may waive an existing Event of Default and
its consequences. When an Event of Default is waived, it is
cured and stops continuing, but no such waiver shall extend to
any subsequent or other Event of Default or impair any right
consequent to it.
Section 8.07. Control by Majority. The holders of a
majority in principal amount of the Bonds then outstanding may
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any
trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture
or, subject to Section 9.01, that the Trustee determines is
34
<PAGE>
unduly prejudicial to the rights of other Bondholders, or would
involve the Trustee in personal liability.
Section 8.08. Limitation on Suits. A Bondholder may not
pursue any remedy with respect to this Indenture or the Bonds
unless (a) the holder gives the Trustee notice stating that an
Event of Default is continuing, (b) the holders of at least 25%
in principal amount of the Bonds then outstanding make a written
request to the Trustee to pursue the remedy, (c) such holder or
holders offer to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense and (d) the
Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; it being
understood and intended that no one or more holders 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 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 and ratable benefit of the holders of
all Bonds then outstanding. Nothing in the Indenture contained
shall, however, affect or impair the right of any Bondholder to
enforce the payment of the principal of and premium, if any, and
interest on any Bond at and after the maturity thereof, or the
obligation of the Issuer to pay the principal of and premium, if
any, and interest on each of the Bonds issued hereunder to the
respective holders thereof at the time and place, from the source
and in the manner in the Bonds expressed.
A Bondholder may not use this Indenture to prejudice the
rights of another Bondholder or to obtain a preference or
priority over the other Bondholders.
Section 8.09. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any holder to receive payment of principal of and interest on
a Bond, on or after the due dates expressed in the Bond, or the
purchase price of a Bond on or after the date for its purchase as
provided in the Bond, or to bring suit for the enforcement of any
such payment on or after such dates, shall not be impaired or
affected without the consent of the holder.
Section 8.10. Collection Suit by Trustee. If an Event of
Default under Section 8.01(a), (b) or (c) occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole
amount remaining unpaid.
Section 8.11. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Bondholders allowed in any judicial
35
<PAGE>
proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the holders in any election of a trustee in
bankruptcy or other person performing similar functions. In the
event of a bankruptcy or reorganization of the Company, the
Trustee may file a proof of claim on behalf of all Bondholders
with respect to the obligations of the Company pursuant to the
Agreement and the Note, including a proof of claim with respect
to the obligation of the Company under the First Mortgage Bonds,
and any such claim with respect to the First Mortgage Bonds shall
reduce the claim of the Mortgage Trustee pro tanto.
Section 8.12. Priorities. If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the
following order:
FIRST: To the Trustee for amounts to which it is
entitled under Section 9.02.
SECOND: To Bondholders for amounts due and unpaid on
the Bonds for principal and interest,
ratably, without preference or priority of
any kind, according to the amounts due and
payable on the Bonds for principal and
interest, respectively.
THIRD: To the Company.
The Trustee may fix a payment date for any payment to the
Bondholders.
Section 8.13. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a
holder pursuant to Section 8.07 or a suit by holders of more than
10% in principal amount of the Bonds then outstanding.
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees
to perform said trusts, but only upon and subject to the
following express terms and conditions:
36
<PAGE>
(a) The Trustee, prior to the occurrence of any Event
of Default and after the curing or waiver 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. In case an Event of Default has occurred
(which has not been cured or waived) 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 corporate trustee would
exercise or use under the circumstances in the enforcement
of a corporate indenture.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through
attorneys, agents, receivers or employees selected by it
with reasonable care and the Trustee shall not be
responsible for the conduct of such attorneys, agents,
receivers or employees, if selected with reasonable care,
and shall be entitled to advice of counsel concerning all
matters relating to the trusts hereof and the duties
hereunder, and may in all cases pay such reasonable
compensation to all such attorneys, agents, receivers and
employees as may reasonably be employed in connection with
the trusts hereof. The Trustee may act upon the opinion or
advice of any attorney (who may be the attorney or attorneys
for the Issuer or the Company), approved by the Trustee in
the exercise of reasonable care. The Trustee shall not be
responsible for any loss or damage resulting from any action
or inaction in good faith in reliance upon such opinion or
advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on the Bonds), or for
the recording or re-recording, filing or re-filing of this
Indenture, or any other instrument required by this
Indenture to secure the Bonds, or for insuring the Project
or collecting any insurance moneys, or for 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 issued
hereunder or intended to be secured hereby.
(d) The Trustee shall not be accountable for the use
of any Bonds authenticated or delivered hereunder. The
Trustee may become the owner of Bonds secured hereby with
the same rights which it would have if not the Trustee. To
the extent permitted by law, the Trustee may also receive
tenders and purchase in good faith Bonds from itself,
including any department, affiliate or subsidiary, with like
effect as if it were not the Trustee.
37
<PAGE>
(e) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it
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 or
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 owners of Bonds
issued in exchange therefor or in place thereof.
(f) As to the existence or non-existence 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 by the Issuer or the Company 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 9.01, or of which by said subsection it is deemed to
have notice, the Trustee 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 or Assistant Secretary of the Issuer under the
Issuer's 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.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty, and it shall not be answerable for other than its
negligence or willful default.
(h) The Trustee shall not be required to take notice
or be deemed to have notice of any Event of Default
hereunder except failure by the Issuer to cause to be made
any of the payments to the Trustee required to be made by
Article IV hereof, unless the Trustee shall be specifically
notified in writing of such Event of Default by the Issuer
or by the holders of at least 25% in aggregate principal
amount of Bonds then outstanding; and all notices or other
instruments required by this Indenture to be delivered to
the Trustee must, in order to be effective, be delivered at
the principal corporate trust office of the Trustee, and in
the absence of such notice so delivered the Trustee may
conclusively assume there is no default except as aforesaid.
38
<PAGE>
(i) At any and all reasonable times the Trustee and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives shall have the right fully
to inspect any and all parts of the Project, including all
books, papers and records of the Issuer pertaining to the
Project and the Bonds and to take such memoranda from and in
regard thereto as may be desired.
(j) 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.
(k) 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, 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, which the Trustee in its discretion may deem
desirable for the purpose of establishing the right of the
Issuer to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
(l) Before taking any action referred to in
Section 8.02, 8.03, 8.04, 8.05, 8.08, 8.09 or 9.04
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 its negligence or willful default by reason of
any action so taken.
(m) All moneys received by the Trustee or any paying
agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes 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 paying agent shall be under any liability
for interest on any moneys received hereunder except such as
may be mutually agreed upon.
(n) No provision of the Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers.
Section 9.02. Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement for
39
<PAGE>
reasonable fees for its services rendered hereunder and all
advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an Event of Default, but only upon an Event
of Default, the Trustee shall have a first lien, with right of
payment prior to payment on account of principal of and premium,
if any, and interest on any Bond, upon the trust estate for the
foregoing fees, charges and expenses incurred by it.
Section 9.03. Notice to Bondholders if an Event of Default
Occurs. If an Event of Default occurs of which the Trustee is by
Section 9.01(h) hereof required to take notice or if notice of an
Event of Default be given as in Section 9.01(h) provided, then
the Trustee shall promptly give written notice thereof by
registered or certified mail to each owner of Bonds then
outstanding.
Section 9.04. Intervention by Trustee. In any judicial
proceeding to which the Issuer is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of the owners of the Bonds, the Trustee may
intervene on behalf of the Bondholders and shall do so if
requested in writing by the owners of at least 25% of the
aggregate principal amount of Bonds then outstanding. The rights
and obligations of the Trustee under this Section 9.04 are
subject to the approval of a court of competent jurisdiction.
Section 9.05. 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, sale, merger, consolidation
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 9.06. Resignation by Trustee. The Trustee and any
successor Trustee may at any time resign from the trusts hereby
created by giving thirty days' written notice to the Issuer and
the Company, served personally or sent by registered or certified
mail, and to each owner of Bonds then outstanding, sent by
registered or certified mail, and such resignation shall take
effect at the end of such thirty days, or upon the earlier
appointment of a successor Trustee pursuant to Section 9.08
hereof.
40
<PAGE>
Section 9.07. Removal of 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 the
Company, and signed by the owners of a majority in aggregate
principal amount of Bonds then outstanding.
Section 9.08. Appointment of Successor Trustee. In case
the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor
shall be appointed by the Issuer at the direction of the Company.
The Issuer shall cause notice of such appointment to be given in
the same manner as the giving of notices of redemption as set
forth in Section 3.04 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the owners
of a majority in aggregate principal amount of Bonds then
outstanding. Every such successor Trustee appointed pursuant to
the provisions of this Section 9.08 shall be a trust company or
bank in good standing having a reported capital, surplus and
undivided profits of not less than $25,000,000, if there be such
an institution willing, qualified and able to accept the trusts
upon reasonable and customary terms.
Section 9.09. 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 of 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 for more fully and
certainly vesting in such successor the estate, rights, powers
and duties 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 IX, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have
been filed and/or recorded and the successor Trustee shall bear
the cost thereof.
41
<PAGE>
Section 9.10. Successor Trustee as Bond Registrar and
Paying Agent. In the event of a change of Trustee, the Trustee
which has resigned or been removed shall cease to be bond
registrar and a paying agent for principal of and premium, if
any, and interest on the Bonds, and the successor Trustee shall
become such bond registrar and a paying agent.
Section 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company. Whenever, after a reasonable
request by the Company, the Issuer shall fail, refuse or neglect
to give any direction to the Trustee or to require the Trustee to
take any action which the Issuer is required to have the Trustee
take pursuant to the provisions of the Agreement or this
Indenture, the Company as agent of the Issuer may give any such
direction to the Trustee or require the Trustee to take any such
action, and the Trustee is hereby irrevocably empowered and
directed to accept such direction from the Company as sufficient
for all purposes of this Indenture. The Company shall have the
right as agent of the Issuer to cause the Trustee to comply with
any of the Trustee's obligations under this Indenture to the same
extent that the Issuer is empowered so to do.
Certain actions or failures to act by the Issuer under this
Indenture may create or result in an Event of Default under this
Indenture and the Company, as agent of the Issuer, may to the
extent permitted by law, perform any and all acts or take such
action as may be necessary for and on behalf of the Issuer to
prevent or correct said Event of Default and the Trustee shall
take or accept such performance by the Company as performance by
the Issuer in such event.
The Issuer hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do all
things and perform all acts provided, and to the extent so
provided, by this Section 9.11.
Section 9.12. No Transfer of Note or First Mortgage Bonds
Held by the Trustee; Exception. Except as required to effect an
assignment to a successor Trustee, the Trustee shall not sell,
assign or transfer the Note or First Mortgage Bonds, and the
Trustee is authorized to enter into an agreement with the Company
to such effect, including a consent to the issuance of stop
transfer instructions to the Mortgage Trustee.
Section 9.13. Filing of Certain Continuation
Statements. From time to time, the Trustee shall duly file, or
cause to be filed, at the expense of the Company, continuation
statements for the purpose of continuing without lapse the
effectiveness of the filing of the financing statements with
respect to the security interest created by this Indenture in the
Agreement, the Note and the First Mortgage Bonds, at or prior to
the issuance of the Bonds and any previously filed continuation
42
<PAGE>
statements which shall have been filed as herein required. The
Issuer shall sign and deliver to the Trustee or its designee such
continuation statements as may be requested of it from time to
time by the Trustee. Upon the filing of any such continuation
statements the Trustee shall immediately notify the Issuer and
the Company that the same has been accomplished.
Section 9.14 Duties of Remarketing Agent. The Remarketing
Agent will set the interest rates on the Bonds and perform the
other duties provided for in Section 2.02 and will remarket the
Bonds as provided in Section 3.08, subject to any provisions of a
remarketing agreement between the Company and the Remarketing
Agent. The Remarketing Agent may for its own account or as
broker or agent for others deal in Bonds and may do anything any
other Bondholder may do to the same extent as if the Remarketing
Agent were not serving as such.
Section 9.15 Eligibility of Remarketing Agent. The
initial Remarketing Agent appointed under this Indenture is
Lehman Brothers Inc. The Remarketing Agent will be a bank, trust
company or member of the National Association of Securities
Dealers, Inc. organized and doing business under the laws of the
United States or any state or the District of Columbia, will have
a combined capital stock, surplus and undivided profits of at
least $15,000,000 as shown in its most recent published annual
report, will be a Participant in the Securities Depository and
will be authorized by law to perform all the duties imposed upon
it by this Indenture. Any successor Remarketing Agent shall be
rated at least Baa3/P-3 or otherwise qualified by Moody's
Investors Service, Inc. or have an equivalent rating of another
rating agency.
Section 9.16 Replacement of Remarketing Agent. The
Remarketing Agent may resign by notifying the Issuer, Trustee and
Company. Such resignation will take effect on the day a
successor Remarketing Agent appointed in accordance with this
Section has accepted the appointment or, if no successor has so
accepted, 30 days after notice of resignation has been sent. The
Company may remove the Remarketing Agent at any time by an
instrument signed by the Company and filed with the Remarketing
Agent, the Issuer and the Trustee at least 30 days prior to the
effective date of such removal (which will not in any event occur
prior to the appointment of a successor Remarketing Agent). A
new Remarketing Agent may be appointed by the Company upon the
resignation or removal of the Remarketing Agent. The Trustee
shall promptly notify the Bondholders of any change in the
Remarketing Agent.
Section 9.17. Compensation of Remarketing Agent. The
Remarketing Agent will not be entitled to any compensation from
the Issuer, the Trustee or any property held under this Indenture
43
<PAGE>
but must make separate arrangements with the Company for
compensation.
Section 9.18. Successor Remarketing Agent. If the
Remarketing Agent consolidates with, merges or converts into, or
transfers all or substantially all its assets (or, in the case of
a bank or trust company, its corporate trust assets) to another
corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Remarketing Agent,
provided that such successor shall be eligible under the
applicable provisions in this Article.
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders. The Issuer
and the Trustee may amend or supplement this Indenture or the
Bonds without notice to or consent of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal
defect or omission,
(b) to grant to the Trustee for the benefit of the
Bondholders additional rights, remedies, powers or
authority,
(c) to subject to this Indenture additional
collateral or to add other agreements of the Issuer,
(d) to modify this Indenture or the Bonds to permit
qualification under the Trust Indenture Act of 1939, as
amended, or any similar federal statute at the time in
effect, or to permit the qualification of the Bonds for sale
under the securities laws of any state of the United States,
(e) to authorize different authorized denominations
of the Bonds and to make correlative amendments and
modifications to this Indenture regarding exchangeability of
Bonds of different authorized denominations, redemptions of
portions of Bonds of particular authorized denominations and
similar amendments and modifications of a technical nature,
(f) to increase or decrease the number of days
specified for the giving of notices in Section 2.02 and to
make corresponding changes to the period for notice of
redemption of the Bonds; provided that no decreases in any
such number of days shall become effective except while the
Bonds bear interest at a Daily Rate or a Weekly Rate and
until 30 days after the Trustee has given notice to the
owners of the Bonds,
44
<PAGE>
(g) to provide for an uncertificated system of
registering the Bonds or to provide for the change to or
from a Book-Entry System for the Bonds,
(h) to evidence the succession of a new Trustee or
the appointment by the Trustee or the Issuer of a co-
trustee, or
(i) to make any change (including a change in Section
4.01 to reflect any amendment to the Code or interpretations
by the Internal Revenue Service of the Code) that does not
materially adversely affect the rights of any Bondholder.
Section 10.02. With Consent of Bondholders. If an amendment
of or supplement to this Indenture or the Bonds without any
consent of Bondholders is not permitted by the preceding Section,
the Issuer and the Trustee may enter into such amendment or
supplement without prior notice to any Bondholders but with the
consent of the holders of at least a majority in principal amount
of the Bonds then outstanding. However, without the consent of
each Bondholder affected, no amendment or supplement may (a)
extend the maturity of the principal of, or interest on, any Bond
or the First Mortgage Bonds, (b) reduce the principal amount of,
or rate of interest on, any Bond or the First Mortgage Bonds, (c)
effect a privilege or priority of any Bond or Bonds over any
other Bond or Bonds, (d) reduce the percentage of the principal
amount of the Bonds required for consent to such amendment or
supplement, (e) impair the exclusion from federal gross income of
interest on any Bond, (f) eliminate the holders' rights to tender
the Bonds, or any mandatory redemption of the Bonds, extend the
due date for the purchase of Bonds tendered by the holders
thereof or call for mandatory redemption or reduce the purchase
or redemption price of such Bonds, (g) create a lien ranking
prior to or on a parity with the lien of this Indenture on the
property described in the Granting Clause of this Indenture or
(h) deprive any Bondholder of the lien created by this Indenture
on such property. In addition, if moneys or Government
Obligations have been deposited or set aside with the Trustee
pursuant to Article VII for the payment of Bonds and those Bonds
shall not have in fact been actually paid in full, no amendment
to the provisions of that Article shall be made without the
consent of the holder of each of those Bonds affected.
Section 10.03. Effect of Consents. Any consent received
pursuant to Section 10.02 will bind each Bondholder delivering
such consent and each subsequent holder of a Bond or portion of a
Bond evidencing the same debt as the consenting holder's Bond.
Section 10.04. Notation on or Exchange of Bonds. If an
amendment or supplement changes the terms of a Bond, the Trustee
may require the holder to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Bond about the changed
45
<PAGE>
terms and return it to the holder. Alternatively, if the
Trustee, the Issuer and the Company determine, the Issuer in
exchange for the Bond will issue and the Trustee will
authenticate a new Bond that reflects the changed terms.
Section 10.05. Signing by Trustee of Amendments and
Supplements. The Trustee will sign any amendment or supplement
to the Indenture or the Bonds authorized by this Article if the
amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing an amendment
or supplement, the Trustee will be entitled to receive and
(subject to Section 9.01) will be fully protected in relying on
an Opinion of Counsel stating that such amendment or supplement
is authorized by this Indenture.
Section 10.06. Company Consent Required. An amendment or
supplement to this Indenture or the Bonds shall not become
effective unless the Company delivers to the Trustee its written
consent to the amendment or supplement.
Section 10.07. Notice to Bondholders. The Trustee shall
cause notice of the execution of each supplement or amendment to
this Indenture or the Agreement to be mailed to the Bondholders.
The notice will at the option of the Trustee, either (i) briefly
state the nature of the amendment or supplement and that copies
of it are on file with the Trustee for inspection by Bondholders
or (ii) enclose a copy of such amendment or supplement.
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT,
OR FIRST MORTGAGE BONDS
Section 11.01. Without Consent of Bondholders. The Issuer
may enter into, and the Trustee may consent to, any amendment of
or supplement to the Agreement, or may waive compliance by the
Company of any provision of the Agreement, and the Trustee, as
holder of the First Mortgage Bonds, may consent to any amendment
of or supplement to the Company Indenture or the First Mortgage
Bonds, in each case without notice to or consent of any
Bondholder, if the amendment, supplement or waiver is required or
permitted (a) by the provisions of the Agreement or this
Indenture, (b) to cure any ambiguity, inconsistency or formal
defect or omission, (c) to identify more precisely the Project,
(d) in connection with any authorized amendment of or supplement
to this Indenture or (e) to make any change that in the judgment
of the Trustee does not materially adversely affect the rights of
any Bondholder.
Section 11.02. With Consent of Bondholders. If an amendment
of or supplement to the Agreement, the Company Indenture or the
46
<PAGE>
First Mortgage Bonds without any consent of Bondholders is not
permitted by the foregoing Section, the Issuer may enter into,
and/or the Trustee may consent to (as the case may be), such
amendment or supplement, or may waive compliance by the Company
of any provision of the Agreement, without notice to any
Bondholder but with the consent of the holders of at least a
majority in principal amount of the Bonds then outstanding.
However, without the consent of each Bondholder affected, no
amendment, supplement or waiver may result in anything described
in the lettered clauses of Section 10.02.
Section 11.03. Consents by Trustee to Amendments or
Supplements. The Trustee will consent to any amendment or
supplement to the Agreement, the Company Indenture or the First
Mortgage Bonds authorized by this Article if the amendment or
supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing a consent to an
amendment or supplement, the Trustee shall be entitled to receive
and (subject to Section 9.01) shall be fully protected in relying
on an Opinion of Counsel stating that such amendment or
supplement is authorized or permitted by this Indenture.
ARTICLE XII
VOTING OF FIRST MORTGAGE BONDS
Section 12.01. Voting of Mortgage Bond Held by the Trustee.
The Trustee, as a holder of First Mortgage Bonds, shall attend
any meeting of bondholders under the Company Indenture as to
which it receives due notice. Either at such meeting, or
otherwise where consent of holders of first mortgage bonds of the
Company is sought without a meeting, the Trustee shall vote as
such holder, or shall consent with respect thereto,
proportionately with what the Trustee reasonably believes will be
the vote or consent of all other first mortgage bonds of the
Company then outstanding and eligible to vote or consent.
Notwithstanding the foregoing, the Trustee shall not vote as
such holder in favor of, or give its consent to, any action
which, in the Trustee's opinion, would materially adversely
affect the interests of the Bondholders, except upon notification
by the Trustee to the Bondholders of such proposal and consent
thereto of the holders of at least 50% in aggregate principal
amount of the Bonds then outstanding and, if such proposal would
so affect the rights of some but less than all the outstanding
Bonds, the consent thereto of the holders of at least 50% in
aggregate principal amount of the Bonds so affected.
ARTICLE XIII
MISCELLANEOUS
47
<PAGE>
Section 13.01. Notices. (a) Any notice, request, direction,
designation, consent, acknowledgment, certification, appointment,
waiver or other communication required or permitted by this
Indenture or the Bonds must be in writing except as expressly
provided otherwise in this Indenture or the Bonds.
(b) Any notice or other communication shall be sufficiently
given and deemed given when delivered by hand or mailed by first-
class mail, postage prepaid, addressed as follows: if to the
Issuer, c/o Board of Commissioners of Monroe County, Forsyth,
Georgia 31029; if to the Trustee, to 214 Hogan Street, 2nd Floor,
Jacksonville, Florida 32202, Attention: Corporate Trust
Department; if to the Company, at 500 Bayfront Parkway,
Pensacola, Florida 32501, Attention: Treasurer, with copies to
Southern Company Services, Inc., 64 Perimeter Center East,
Atlanta, Georgia 30346, Attention: Corporate Finance Department;
and if to the Remarketing Agent, to Lehman Brothers Inc.,
American Express Tower, World Financial Center, New York, New
York 10285, Attention: Short-term Municipal Desk. Any addressee
may designate additional or different addresses for purposes of
this Section.
Section 13.02. Bondholders' Consents. Any consent or other
instrument required by this Indenture to be signed by Bondholders
may be in any number of concurrent documents and may be signed by
a Bondholder or by the holder's agent appointed in writing.
Proof of the execution of such instrument or of the instrument
appointing an agent and of the ownership of Bonds, if made in the
following manner, shall be conclusive for any purposes of this
Indenture with regard to any action taken by the Trustee under
the instrument:
(a) The fact and date of a person's signing an
instrument may be proved by the certificate of any officer
in any jurisdiction who by law has power to take
acknowledgments within that jurisdiction that the person
signing the writing acknowledged before the officer the
execution of the writing, or by an affidavit of any witness
to the signing.
(b) The fact of ownership of Bonds, the amount or
amounts, numbers and other identification of such Bonds and
the date of holding shall be proved by the registration
books kept pursuant to this Indenture.
In determining whether the holders of the required principal
amount of Bonds outstanding have taken any action under this
Indenture, Bonds owned by the Company or any person controlling,
controlled by or under common control with the Company shall be
disregarded and deemed not to be outstanding. In determining
whether the Trustee shall be protected in relying on any such
48
<PAGE>
action, only Bonds which the Trustee knows to be so owned shall
be disregarded.
Any consent or other instrument shall be irrevocable and
shall bind any subsequent owner of such Bond or any Bond
delivered in substitution therefor.
Section 13.03. Appointment of Separate Paying Agent and/or
Tender Agent. If, at any time, the Securities Depository ceases
to hold the Bonds, with the effect that the Bonds are no longer
subject to the Book-Entry System, then the Issuer and the
Trustee, acting at the request of the Company, may appoint one or
more banks or trust companies to act as paying agent and/or
tender agent for the Bonds hereunder. Any such paying agent or
tender agent shall be a bank or trust company organized under the
laws of the United States of America or any state thereof, shall
have a reported capital and surplus of at least $100,000,000 and
a corporate trust office located in New York, New York at which
Bonds may be presented for payment or purchase and shall perform
such duties and responsibilities as may be delegated to it
hereunder. If such a paying agent or tender agent is appointed,
then all references herein to the "Trustee" shall include such
paying agent or tender agent to the extent of the duties
performed by such entity.
Section 13.04. Limitation of Rights. Nothing expressed or
implied in this Indenture or the Bonds shall give any person
other than the Trustee, Issuer, Company, Remarketing Agent and
the Bondholders any right, remedy or claim under or with respect
to this Indenture.
Section 13.05. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative or unenforceable to any extent
whatsoever.
Section 13.06. Payments Due on Non-Business Days. If a
payment date is not a Business Day at the place of payment, then
payment may be made at that place on the next Business Day, and
no interest shall accrue for the intervening period.
Section 13.07. Governing Law. This Indenture shall be
governed exclusively by and construed in accordance with the
applicable laws of the State.
Section 13.08. Captions. The captions in this Indenture are
for convenience only and do not define or limit the scope or
intent of any provisions or Sections of this Indenture.
49
<PAGE>
Section 13.09. No Liability of Officers. No covenant or
agreement contained in the Bonds or this Indenture shall be
deemed to be a covenant or agreement of any commissioner, agent
or employee of the Issuer in his individual capacity, and neither
the officers of the Issuer nor any official executing the Bonds
or this Indenture shall be liable personally on the Bonds or be
subject to any personal liability or accountability by reason of
the issuance of the Bonds or the execution and delivery of this
Indenture.
Section 13.10. Counterparts. This Indenture may be signed
in several counterparts. Each will be an original, but all of
them together constitute the same instrument.
50
<PAGE>
IN WITNESS WHEREOF, the Development Authority of Monroe
County 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, and to evidence its acceptance
of the trusts hereby created First Union National Bank of
Florida, as 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 day
and year first above written.
DEVELOPMENT AUTHORITY OF
[SEAL] MONROE COUNTY
By: ___________________________________
Vice Chairman
Attest:
_______________________________
Secretary
FIRST UNION NATIONAL BANK
OF FLORIDA, as Trustee
[SEAL] By: ___________________________________
Title: ___________________________
Attest:
_______________________________
Title: ________________________
tjh:\71570\76153\indentur.1
<PAGE>
