File No. 70-8229
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 11
(Post-Effective No. 9)
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 D. McLanahan, Esq.
Financial Vice President Troutman Sanders LLP
The Southern Company 600 Peachtree Street, N.E.
270 Peachtree Street, NW Suite 5200
Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216
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Item 1. Description of Proposed Transactions.
Item 1 is hereby amended by adding thereto the following:
"Gulf has determined not to deliver the Letter of Credit or cause
insurance policies to be issued in connection with the proposed issuance and
sale by Bay County, Florida (the "County") of $12,075,000 aggregate principal
amount of its Pollution Control Revenue Refunding Bonds, Series 1996 (Gulf Power
Company Project) (the "Revenue Bonds").
The proceeds of the Revenue Bonds will be applied to the redemption of
$12,075,000 principal amount of Bay County, Florida, 6% Pollution Control
Revenue Bonds (Gulf Power Company Lansing Smith Steam Plant Project) Series A,
due October 1, 2006 (the "Prior Bonds"). Gulf caused the issuance of the Prior
Bonds pursuant to authority granted by the Commission in HCAR No. 35-19652
(August 18, 1976).
Gulf will issue Collateral Bonds to the Trustee to secure its payment
obligations with respect to the Revenue Bonds, pursuant to a Supplemental
Indenture substantially in the form filed as Exhibit A-2 hereto. The Collateral
Bonds will be issued in a principal amount equal to the principal amount of the
Revenue Bonds and will bear interest at the rate of interest borne by such
series of Revenue Bonds.
In connection with the issuance of the Revenue Bonds, Gulf proposes to
enter into a Loan Agreement with the County substantially in the form of Exhibit
B-1 hereto (the "Agreement"). Under the Agreement, the County will loan to Gulf
the proceeds from the sale of the Revenue Bonds and Gulf will issue a
non-negotiable promissory note (the "Note") to evidence its obligation to repay
such loan. The Note will provide for payments thereon to be made at times and in
amounts which shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Revenue bonds whenever and in whatever
manner the same shall become due, whether at stated maturity, upon redemption or
declaration or otherwise.
The County has, pursuant to competitive bidding, entered into
underwriting arrangements with Morgan Stanley & Co. Incorporated and J. P.
Morgan Securities, Inc., as the underwriters, for the sale of the Revenue Bonds
bearing interest at the rate of 5.25% per annum and maturing on April 1, 2006.
Such arrangements will result in a true interest cost to Gulf of 5.4526% per
annum. Such underwriters will purchase the Revenue Bonds from the County at a
purchase price of 100% of the principal amount thereof (plus accrued interest
from April 1, 1996 to the delivery date) and Gulf will pay the underwriting fee
of $186,679.50 (1.546% of the aggregate principal amount) for such underwriters'
services.
The record is now complete with respect to the issuance of the Revenue
Bonds. Gulf hereby requests that the Commission issue its order with respect to
such $12,075,000 of Revenue Bonds and reserve jurisdiction over the sale of the
remaining $116,850,000 of Revenue Bonds pending completion of the record. Gulf
also requests that the Commission continue to reserve jurisdiction over
$134,500,000 in principal amount or par value, as the case maybe, of the Bonds
and Preferred Stock pursuant to these proceedings."
Item 2. Fees, Commissions and Expenses.
Item 2 is hereby amended as follows:
"The fees and expenses to be paid or incurred by Gulf,
directly or indirectly, in connection with the proposed issuance of the
Collateral Bonds with respect to the Revenue Bonds (as distinguished from and
excluding fees, commissions and expenses incurred or to be incurred in
connection with the sale of the Revenue Bonds by the County and in connection
with the determination of the tax status of the Revenue Bonds) are as follows:
Fee of Counsel for Gulf................................ $25,000
Fee of accountants, Arthur Andersen LLP................ 25,000
Fee of First Mortgage Bond Trustee..................... 20,000
Services of Southern Company Services, Inc............. 10,000
Miscellaneous, including telephone charges and
traveling expenses.................................... 5,000
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$85,000
Item 3. Applicable Statutory Provisions.
Item 3 is hereby amended by adding thereto the following:
"Rule 54 Analysis. Rule 54 provides, in pertinent part, that, in
determining whether to approve a transaction by a registered holding company or
subsidiary thereof, other than with respect to an EWG or FUCO, the Commission
shall not consider the effect of the capitalization or earnings of any such
subsidiary or a registered holding company if the requirements of Rule 53(a),
(b) and (c) are satisfied. In this regard, Gulf represents that each of the
conditions of Rule 53(a) is met,1 and that none of the circumstances described
in Rule 53(b) has occurred.
____________________________
1 In a separate proceeding (File No. 70-8725), Southern has been authorized to
issue securities (including guaranties) in order to finance investments in EWGs
(as well as FUCOs) in amounts which would exceed the limitation in Rule
53(a)(1). Gulf's representation regarding compliance with Rule 54 is therefor
expressly subject to the Commission's order in File No. 70-8725.
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Item 6. Exhibits and Financial Statements.
(a) Exhibits.
A-2 -- Draft of proposed Supplemental Indenture
between Gulf and The Chase Manhattan Bank
(National Association), as Trustee, relating to
the Collateral Bonds.
B-1 -- Draft of Loan Agreement between Gulf and the County
relating to the Revenue Bonds.
B-2 -- Draft of Trust Indenture between the County and the
Trustee relating to the 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: April 15, 1996 GULF POWER COMPANY
By /s/ Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit A-2
Draft 4/9/96
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
____% Pollution Control Series due April 1, 2006
Dated as of April 1, 1996
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.
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SUPPLEMENTAL INDENTURE, dated as of April 1, 1996, 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 office
of the Trustee, above referred to; and
WHEREAS the Company and the Trustees, or the Trustee, as the case may
be, 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 office of the Trustee, above referred
to; and
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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 "____% Pollution Control
Series due April 1, 2006" (hereinafter sometimes referred to as the "Forty-sixth
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 April 1, 2006; and
WHEREAS each of the bonds of the Forty-sixth Series is to be
substantially in the following form, with appropriate insertions and deletions,
to-wit:
[FORM OF BOND OF THE FORTY-SIXTH SERIES]
GULF POWER COMPANY
First Mortgage Bond, ____% Pollution Control
Series Due April 1, 2006
No.......... $..............
Gulf Power Company, a Maine corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to SunTrust Banks of
Florida, Inc., Orlando, Florida (as trustee under the Trust Indenture dated as
of April 1, 1996 of Bay County, Florida, relating to the Revenue Bonds
(hereinafter mentioned)) or registered assigns, the principal sum of Dollars on
April 1, 2006, 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 October 1,
1996, in which case from April 1, 1996, at the rate per annum, until the
principal hereof shall have become due and payable, specified in the title
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of this bond, payable on April 1 and October 1 in each year commencing October
1, 1996.
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 April 24, 1996 issued
pursuant to Section 3.2 of the Loan Agreement dated as of April 1, 1996
(hereinafter referred to as the "Agreement") between Bay County, Florida, and
the Company, sufficient to pay fully or partially the then due principal of and
premium, if any, and interest on the Bay County, Florida, Pollution Control
Revenue Refunding Bonds, Series 1996 (Gulf Power Company Project) (hereinafter
referred to as "Revenue Bonds") or there shall be in the Bond Fund established
pursuant to the Trust Indenture dated as of April 1, 1996 (hereinafter referred
to as the "Revenue Bond Indenture") of Bay County, Florida to SunTrust Banks of
Florida, Inc., Orlando, 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
sometimes referred to as the "Trustee"), and The Citizens & Peoples National
Bank of Pensacola, as Trustees, and indentures supplemental thereto, to which
indenture and indentures supplemental thereto (hereinafter referred to
collectively
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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.
In the manner and to the extent provided in the
Indenture, the bonds of this series are also redeemable in
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whole at any time upon receipt by the Trustee of a written demand from the
Revenue Bond Trustee stating 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. 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 but
without premium.
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 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
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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.
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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
[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
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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 $12,075,000 principal amount of bonds of the Forty-sixth 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 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,
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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 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,
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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- sixth Series"), and the form thereof shall be substantially
as hereinbefore set forth. Bonds of the Forty-sixth 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-sixth 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-sixth 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-sixth 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 April 1 and October 1 in each year
commencing October 1, 1996.
The principal of and premium, if any, and the interest on the bonds of
the Forty-sixth 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-sixth 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-sixth 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-sixth Series other
than for any tax or taxes or other governmental charge required to be paid by
the Company.
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Any or all of the bonds of the Forty-sixth 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-sixth 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 April 24, 1996 issued pursuant to Section 3.2 of the Loan Agreement dated
as of April 1, 1996 (hereinafter referred to as the "Agreement") between Bay
County, Florida, and the Company sufficient to pay fully or partially the then
due principal of and premium, if any, and interest on the Bay County, Florida,
Pollution Control Revenue Refunding Bonds, Series 1996 (Gulf Power Company
Project) (hereinafter referred to as the "Revenue Bonds") or there shall be in
the Bond Fund established pursuant to the Trust Indenture dated as of April 1,
1996 (hereinafter referred to as the "Revenue Bond Indenture") of Bay County,
Florida, to SunTrust Banks of Florida, Inc., Orlando, 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-sixth 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.
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In addition to redemption as provided in Section 1 hereof, Bonds of the
Forty-sixth 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-sixth 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-sixth 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-sixth 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
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<PAGE>
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-sixth Series and no payments in respect thereof as specified in the
Demand Redemption Notice shall be effected or required.
Bonds of the Forty-sixth 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 Bonds a principal amount of
bonds of the Forty-sixth 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-sixth 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-sixth 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-sixth
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
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<PAGE>
October 1, 1964, which are to remain in effect so long as any bonds of the Tenth
Series shall be outstanding under the Indenture, shall remain in full force and
effect so long as any bonds of the Forty-sixth 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.
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.
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<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 April, 1996 by GULF POWER COMPANY
in the presence of:
Name:
Name:
<PAGE>
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By:
Valerie Dunbar
Vice President
4 Chase MetroTech Center
3rd Floor
Brooklyn, New York 11245
Attest:
Assistant Secretary
4 Chase MetroTech Center
3rd Floor
Brooklyn, New York 11245
Signed, sealed and delivered this ___ day of April, 1996 by THE CHASE MANHATTAN
BANK (National Association) in
the presence of:
Name:_______________________
Name:_______________________
<PAGE>
STATE OF FLORIDA ss.
ss.
COUNTY OF ESCAMBIA ss.
The foregoing instrument was
acknowledged before me this ___ day of April, 1996, 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:
May 18, 1999
Commission Number: CC 446149
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<PAGE>
STATE OF NEW YORK ss.
ss.
COUNTY OF KINGS ss.
The foregoing instrument was
acknowledged before me this ___ day of April, 1996, by Valerie Dunbar, a Vice
President 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:
--------------------------------
Exhibit B-1
Draft 4/9/96
BAY COUNTY, FLORIDA
and
GULF POWER COMPANY
---------------
LOAN AGREEMENT
---------------
Dated as of April 1, 1996
Relating to $12,075,000 Pollution Control Revenue
Refunding Bonds, Series 1996
(Gulf Power Company Project)
<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................. 3
SECTION 2.2. Issuance of Series 1996 Bonds; Additional
Bonds..................................................... 3
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........................................... 4
SECTION 3.3. Obligation of the Company Unconditional................... 4
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.............................. 5
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............................. 7
SECTION 4.4. Annual Statement......................................... 8
SECTION 4.5. Further Assurances and Corrective
Instruments...................................... 8
SECTION 4.6. Maintenance of Project by Company........................ 8
SECTION 4.7. Redemption or Purchase of Bonds.......................... 8
SECTION 4.8. Tax Covenants............................................ 9
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<PAGE>
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default......................................... 9
SECTION 5.2. Remedies on Default....................................... 11
SECTION 5.3. Agreement to Pay Attorneys' Fees and
Expenses.......................................... 11
SECTION 5.4. No Additional Waiver Implied by One Waiver................ 11
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement.................................... 12
SECTION 6.2. Notices................................................... 12
SECTION 6.3. Binding Effect............................................ 12
SECTION 6.4. Severability.............................................. 12
SECTION 6.5. Amounts Remaining in the Bond Fund........................ 12
SECTION 6.6. Amendments................................................ 12
SECTION 6.7. Execution in Counterparts................................. 13
SECTION 6.8. Applicable Law............................................ 13
SECTION 6.9. Captions.................................................. 13
SECTION 6.10. Other Financing.......................................... 13
EXHIBIT A.............................................................. 15
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<PAGE>
LOAN AGREEMENT dated as of April 1, 1996 between BAY COUNTY, FLORIDA, a
"local agency" as defined in the Florida Industrial Development Financing Act,
being Part II of Chapter 159, Florida Statutes, Sections 159.25 through 159.43
(the "Act"), and a political subdivision of the State of Florida (the "Issuer"),
and GULF POWER COMPANY, a corporation organized and existing under the laws of
the State of Maine and qualified and doing business as an electric utility in
the State of Florida (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 Florida 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", "Bond Fund", "Bondholder", "Bonds", "Code",
"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) and The
Citizens & Peoples National Bank of Pensacola, as trustees, as heretofore and
hereafter supplemented and amended by various supplemental indentures, including
but not limited to the Supplemental Indenture dated as of April 1, 1996.
"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 April 1, 1996,
relating to Pollution Control Revenue Refunding Bonds, between the Issuer and
SunTrust Banks of Florida, Inc., 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 Installment Sale Agreement dated as of
October 1, 1976 between the Issuer and the Company, delivered in connection with
the issuance of the Refunded Bonds.
"Plans" and "Project" have the same meanings given and assigned to such
words in Article I of the Original Agreement.
"Refunded Bonds" means the Issuer's Pollution Control Revenue Bonds
(Gulf Power Company Lansing Smith Steam Plant Project), Series A, issued in the
original aggregate principal amount of $12,500,000 (of which $12,075,000
principal amount is outstanding at the date of this Agreement).
"Series 1996 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, as agent for the Issuer pursuant to the Original Agreement, 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 Series 1996 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 Series 1996 Bonds to the
purchasers thereof at a price to be approved in advance by the Company 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.
The Issuer may hereafter agree to authorize and issue pari passu
Additional Bonds in one or more series in accordance with applicable provisions
of the Indenture, upon adoption of a
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<PAGE>
resolution of the Issuer containing a finding that the issuance of the
Additional Bonds is in the public interest, and further containing findings with
respect to the financial ability of the Company and other matters as required by
the Act. The Issuer shall thereafter issue such Additional Bonds in one or more
series, in accordance with the applicable provisions of the Indenture; provided,
however, that the inability or unwillingness of the Issuer to issue Additional
Bonds shall not release the Company from any of the provisions of this
Agreement, regardless of the reason therefor. Nothing herein shall be deemed to
require or obligate the Issuer to issue Additional Bonds.
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 Series 1996
Bonds, of redeeming the Refunded Bonds within 90 days after the date of initial
issuance of the Series 1996 Bonds. The Company hereby agrees to cause the
proceeds of the Series 1996 Bonds to be applied exclusively to the foregoing
purpose and to cause the Refunded Bonds to be redeemed within 90 days after the
date of initial issuance of the Series 1996 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 authentication 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 (including reasonable attorneys' fees) 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
Refunded Bonds or the Bonds.
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<PAGE>
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 Florida 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 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.
- 4 -
<PAGE>
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 first mortgage bonds issued under the First
Mortgage, including the First Mortgage Bonds.
The Issuer makes no warranty, either express or implied, as to the
Project or the condition thereof, or that the Project will be suitable for the
purposes or needs of the Company. The Issuer makes no representation or
warranty, express or implied, that the Company will have quiet and peaceful
possession of the Project except to the extent set forth in the first paragraph
of this Section 4.1. The Issuer makes no representation or warranty, express or
implied, with respect to the merchantability, condition or workmanship of any
part of the Project or its suitability for the Company's purposes.
SECTION 4.2. Indemnity Against Claims. (a) The Company will pay and
discharge and will indemnify and hold harmless the Issuer from (i) any lien or
charge upon payments by the Company to the Issuer under the Notes or hereunder,
(ii) any taxes, assessments, impositions and other charges upon payments by the
Company to the Issuer under the Notes or hereunder and (iii) 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.
(b) Notwithstanding the fact that it is the intention of the parties
hereto that the Issuer shall not incur any pecuniary liability by reason of the
terms of this Agreement or the undertakings required of the Issuer hereunder, by
reason of the issuance of the Bonds, by reason of the execution of the Indenture
or by reason of the performance of any act requested of the Issuer by the
Company, including all claims, liabilities or losses arising in connection with
the violation of any statutes or regulation pertaining to the foregoing;
nevertheless, if the Issuer should incur any such pecuniary liability, then in
such
- 5 -
<PAGE>
event the Company shall indemnify and hold the Issuer harmless against all
claims, demands or causes of action whatsoever, by or on behalf of any person,
firm or corporation or other legal entity arising out of the same and all costs
and expenses incurred in connection with any such claim or in connection with
any action or proceeding brought thereon. All references to the Issuer in this
Section 4.2 shall be deemed to include its commissioners, directors, officers,
employees, and agents.
(c) Notwithstanding anything to the contrary contained herein or in any
of the Bonds, the Indenture, or in any other instrument or document executed by
or on behalf of the Issuer in connection herewith, (i) the Issuer shall have no
obligation to take action under this Agreement, the Indenture, the Bonds or such
other instruments or documents, unless the Issuer is reasonably requested in
writing by an appropriate person to take such action and is provided with
indemnity and assurances reasonably satisfactory to it of payment of or
reimbursement for any expenses (including attorneys' fees) in such action, and
(ii) any judgment rendered against the Issuer for breach of its obligations
under this Agreement, the Indenture, the Bonds or such other instruments or
documents, shall be payable solely from the revenues derived from the Project by
the Issuer under this Agreement and the Indenture, and no personal liability or
charge payable directly or indirectly from the general funds of the Issuer shall
arise therefrom.
(d) In acting under this Agreement, the Indenture, the Bonds or such
other instruments or documents, or in refraining from taking such action, the
Issuer may conclusively rely on the advice of its counsel.
(e) Notwithstanding anything to the contrary contained herein or in any
of the Bonds, or the Indenture, or in any other instrument or document executed
by or on behalf of the Issuer in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement, or obligation of any present or future
member, officer, employee or agent of the Issuer, or of any incorporator,
member, director, trustee, officer, employee or agent of any successor to the
Issuer, in any such person's individual capacity, and no such person, in his
individual capacity, shall be liable personally for any breach or non-observance
of or for any failure to perform, fulfill or comply with any such stipulations,
covenants, agreements or obligations, nor shall any recourse be had for the
payment of the principal of, premium, if any, or interest on any of the Bonds or
for any claim based thereon or on any such stipulation, covenant, agreement, or
obligation, against any such person, in his individual capacity, either directly
or through the Issuer or any successor to the Issuer, under any rule of law or
equity, statute or constitution
- 6 -
<PAGE>
or by the enforcement of any assessment or penalty or otherwise, and all such
liability of any such person, in his individual capacity, is hereby expressly
waived and released. The provisions of this Section shall survive the
termination of this Agreement.
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 and
qualification to do business in the State of Florida, 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 Florida corporation or is qualified to do
business in the State of Florida 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
- 7 -
<PAGE>
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.
SECTION 4.8. Tax Covenants. The Company and the Issuer covenant and
agree that they will not use or permit the use by any person of any of the funds
provided by the Issuer hereunder or any other of its funds, directly or
indirectly, or direct the Trustee to invest any funds held by it under the
Indenture or this Agreement, in such manner as would, or enter into, or allow
any "related person" (as defined in Section 147(a) of the Code) to enter into,
any arrangement, formal or informal, that would, or take or omit to take any
other action that would, cause any Bond to be an "arbitrage bond" within the
meaning of Section 148(a) of the Code or result in the loss of the exclusion
from gross income for federal income taxation purposes of the interest paid on
the Bonds. Without limiting the generality of the foregoing, the Company
covenants and agrees to comply with the requirements of
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<PAGE>
Sections 148(d) and 148(f) of the Code 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. The Company acknowledges Section
6.02 of the Indenture and agrees to pay all amounts (if any) required to be
rebated to the United States and otherwise to perform all duties imposed upon it
by Section 6.02 of the Indenture. Insofar as said Section 6.02 imposes duties
and responsibilities on the Company, it is specifically incorporated herein by
reference.
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 other 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 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
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<PAGE>
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 Florida 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 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
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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 this Agreement and 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.
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, to
the Chairman of the Board of County Commissioners, Bay County,
Florida, P.O. Box 1818, Panama City, Florida 32402; if to the
Company, at 500 Bayfront Parkway, Pensacola, Florida 32501,
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<PAGE>
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 ________________, Orlando, Florida _____,
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 Note
shall be governed by and construed in accordance with the laws of
the State of Florida.
SECTION 6.9. 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 6.10. 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
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<PAGE>
refinancing of costs of the Project or any portion thereof in lieu of or in
addition to the provisions herein for Additional Bonds.
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<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.
BAY COUNTY, FLORIDA
By:
Chairman of the Bay
County Board of County
Commissioners
ATTEST:
- ---------------------------
Clerk of the Bay County
Board of County Commissioners
GULF POWER COMPANY
By:
Vice President
ATTEST:
- ---------------------------
Secretary
<PAGE>
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
GULF POWER COMPANY (the "Company"), 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 Bay County, Florida
(the "County"), and its successors and assigns, the principal sum of
__________________ DOLLARS ($________ ) together with interest on the unpaid
principal balance thereof from the date hereof until the Company'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 the Company 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 County to the Company and the
obligation of the Company 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 County and the Company dated as of April 1, 1996,
pursuant to which the County has loaned to the Company the proceeds of the sale
of the County's $__________ of Pollution Control Revenue Refunding Bonds, Series
_______ (Gulf Power Company Project) (the "Bonds"). Additional similar Notes may
be issued by the Company as provided in the Agreement. This Note (together with
the Agreement) has been assigned to SunTrust Banks of Florida, Inc. (the
"Trustee"), acting pursuant to a trust indenture dated as of April 1, 1996 (the
"Indenture") between the County 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 County, 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
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<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 the Company 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
By:____________________________
Attest:________________________
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<PAGE>
ASSIGNMENT
Pay to the order of SunTrust Banks of Florida, Inc., as assignee of Bay
County, Florida, under the Trust Indenture, dated as of April 1, 1996, between
Bay County, Florida and SunTrust Banks of Florida, Inc., as Trustee, securing
the payment of Bay County, Florida Pollution Control Revenue Refunding Bonds,
Series ____ (Gulf Power Company Project) in the original principal amount of
$_____________.
BAY COUNTY, FLORIDA
By:____________________________
Exhibit B-2
Draft 4/9/96
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BAY COUNTY, FLORIDA
to
SUNTRUST BANKS OF FLORIDA, INC., as Trustee
TRUST INDENTURE
Dated as of April 1, 1996
Relating to $12,075,000 Pollution Control
Revenue Refunding Bonds, Series 1996
(Gulf Power Company Project)
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<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 ................................ 7
GRANTING CLAUSE .................................... 8
HABENDUM CLAUSE .................................... 9
ARTICLE I
DEFINITIONS ........................................ 10
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds .......... 11
SECTION 2.02. Issuance of Bonds ................... 11
SECTION 2.03. Form of Bonds ....................... 12
SECTION 2.04. Details, Execution and Payment ...... 12
SECTION 2.05. Authentication, Registration,
Exchange, Transfer and
Ownership of Bonds ................. 14
SECTION 2.06. Delivery of Series 1996 Bonds;
Application of Proceeds ............ 15
SECTION 2.07. Temporary Bonds ..................... 17
SECTION 2.08. Mutilated, Destroyed or Lost Bonds .. 17
SECTION 2.09. Destruction of Bonds ................ 18
SECTION 2.10. Additional Bonds .................... 18
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<PAGE>
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Page
SECTION 3.01. Redemption Dates and Prices ......... 20
SECTION 3.02. Notice of Redemption ................ 20
SECTION 3.03. Effect of Call for Redemption ....... 21
SECTION 3.04. Partial Redemption .................. 21
SECTION 3.05. Funds in Trust; Unclaimed Funds ..... 21
SECTION 3.06. Special Redemption .................. 22
SECTION 3.07. Surrender of First Mortgage Bonds ... 22
SECTION 3.08. Satisfaction of First Mortgage
Bonds ............................. 23
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal and Premium,
If Any, and Interest ............... 23
SECTION 4.02. Performance of Covenants; Issuer ..... 23
SECTION 4.03. Instruments of Further Assurance ..... 24
SECTION 4.04. Recordation .......................... 24
SECTION 4.05. Inspection of Project Books .......... 24
SECTION 4.06. Rights Under Agreement ............... 24
SECTION 4.07. Designation of Additional Paying
Agents ............................. 25
SECTION 4.08. Existence of Issuer................... 25
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds ........... 25
SECTION 5.02. Creation of Bond Fund ................ 25
SECTION 5.03. Payments into the Bond Fund .......... 25
SECTION 5.04. Use of Moneys in the Bond Fund ....... 26
SECTION 5.05. Custody of the Bond Fund ............. 27
SECTION 5.06. Non-presentment of Bonds ............. 27
SECTION 5.07. Moneys to Be Held in Trust ........... 27
SECTION 5.08. Repayment to the Company from the
Bond Fund .......................... 27
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<PAGE>
ARTICLE VI
INVESTMENTS
Page
SECTION 6.01. Investment of Bond Fund Moneys ....... 28
SECTION 6.02. Tax Covenants ........................ 28
ARTICLE VII
RELEASE OF LIEN
SECTION 7.01. Release of Lien ...................... 29
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default .................... 30
SECTION 8.02. Acceleration ......................... 31
SECTION 8.03. Other Remedies ....................... 31
SECTION 8.04. Legal Proceedings by Trustee ......... 32
SECTION 8.05. Right of Bondholders to Direct
Proceedings ........................ 32
SECTION 8.06. Appointment of Receivers ............. 33
SECTION 8.07. Waiver ............................... 33
SECTION 8.08. Application of Moneys ................ 33
SECTION 8.09. Remedies Vested in Trustee ........... 35
SECTION 8.10. Rights and Remedies of Bondholders ... 35
SECTION 8.11. Termination of Proceedings ........... 36
SECTION 8.12. Waivers of Events of Default ......... 36
SECTION 8.13. Notice of Default under
Section 8.01(c); Opportunity
of Issuer and the Company to
Cure Such Default .................. 37
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<PAGE>
ARTICLE IX
THE TRUSTEE
Page
SECTION 9.01. Acceptance of the Trusts ............. 37
SECTION 9.02. Fees, Charges and Expenses of
Trustee ............................ 41
SECTION 9.03. Notice to Bondholders if an Event
of Default Occurs .................. 41
SECTION 9.04. Intervention by Trustee .............. 41
SECTION 9.05. Successor Trustee .................... 41
SECTION 9.06. Resignation by Trustee ............... 42
SECTION 9.07. Removal of Trustee ................... 42
SECTION 9.08. Appointment of Successor Trustee ..... 42
SECTION 9.09. Concerning Any Successor Trustee ..... 42
SECTION 9.10. Successor Trustee as Bond
Registrar, Custodian of
Bond Fund and Paying Agent ......... 43
SECTION 9.11. Trustee and Issuer Required
to Accept Directions and
Actions of Company ................. 43
SECTION 9.12. No Transfer of Notes or First
Mortgage Bonds Held by the
Trustee; Exception ................. 44
SECTION 9.13. Voting of First Mortgage Bonds
Held by the Trustee ................ 44
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not
Requiring Consent of Bondholders ... 45
SECTION 10.02. Supplemental Indentures Requiring
Consent of Bondholders ............. 46
SECTION 10.03. Trustee Authorized to Join in
Supplements; Reliance on Counsel ... 47
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<PAGE>
ARTICLE XI
AMENDMENT OF AGREEMENT
Page
SECTION 11.01. Amendments, Etc., to Agreement
Not Requiring Consent of
Bondholders ........................ 48
SECTION 11.02. Amendments, Etc., to Agreement
Requiring Consent of Bondholders ... 48
SECTION 11.03. Trustee Authorized to Join in
Amendments; Reliance on Counsel .... 48
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, Etc., of Bondholders ...... 49
SECTION 12.02. Limitation of Rights ................ 49
SECTION 12.03. Severability ........................ 49
SECTION 12.04. Notices ............................. 49
SECTION 12.05. Trustee as Paying Agent and
Bond Registrar .................... 50
SECTION 12.06. Payments Due on Saturdays, Sundays
and Holidays ...................... 50
SECTION 12.07. Counterparts ........................ 50
SECTION 12.08. Applicable Provisions of Law ........ 50
SECTION 12.09. Captions ............................ 50
SECTION 12.10. No Liability of Officers ............ 51
TESTIMONIUM ........................................ 53
SIGNATURES AND SEALS ............................... 53
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<PAGE>
THIS INDENTURE made and entered into as of April 1, 1996, by and
between BAY COUNTY, FLORIDA, a political subdivision of the State of Florida
(the "Issuer"), and SUNTRUST BANKS OF FLORIDA, INC., a state banking corporation
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 State of
Florida, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Issuer is a "local agency" as defined in the Florida
Industrial Development Financing Act, being Part II of Chapter 159, Florida
Statutes, Sections 159.25 through 159.43 (the "Act"); and
WHEREAS, in furtherance of its statutory purposes, the Issuer has
entered into a Loan Agreement dated as of April 1, 1996 (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 air and water
pollution control facilities, or portions thereof, at the Lansing Smith Steam
Plant (the "Plant"), in Bay County, Florida; and
WHEREAS, the Agreement provides that, for the purposes therein set
forth, the Issuer will issue and sell its Pollution Control Revenue Refunding
Bonds (Gulf Power Company 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, a like principal amount of the Company's 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; and
WHEREAS, the execution and delivery of this Indenture and the Agreement
have been in all respects duly and validly authorized by resolution duly adopted
by the Board of County Commissioners of the Issuer (the "Board"); and
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<PAGE>
WHEREAS, in order to provide funds for the purposes set forth in the
Agreement, the Issuer has duly authorized the issuance and sale of its Pollution
Control Revenue Refunding Bonds, Series 1996 (Gulf Power Company Project)
(hereinafter sometimes called the "Series 1996 Bonds"), in the aggregate
principal amount of $12,075,000 under and pursuant to this Indenture; and
WHEREAS, the Issuer has determined that the Series 1996 Bonds and the
certificate of authentication by the Trustee to be endorsed on all such Bonds
shall be, respectively, substantially in the following forms, with such
variations, omissions and insertions as are required or permitted by this
Indenture:
[FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF FLORIDA
BAY COUNTY
POLLUTION CONTROL REVENUE REFUNDING BOND, SERIES 1996
(Gulf Power Company Project)
BAY COUNTY, FLORIDA (herein called the "Issuer"), a political
subdivision of the State of Florida, 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 April, 2006 (or
earlier as hereinafter referred to), upon the presentation and surrender hereof
at the principal corporate trust office of the Trustee (hereinafter mentioned),
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 such 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 is 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 October
1, 1996, in which case from April 1, 1996, at the rate of
____________________________ per centum (____%) per annum until payment of said
principal sum, such interest being payable semiannually on the 1st days of April
and October
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<PAGE>
(commencing October 1, 1996) in each year in like coin or
currency.
The interest payable on any April 1 or October 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 March 15 or September 15, as the case may be,
next preceding such interest payment date or, if such March 15 or September 15
shall be a legal holiday or a day on which banking institutions in Orlando,
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 Issuer is a political subdivision of the State of Florida and a
"local agency" as defined in the Florida Industrial Development Financing Act,
being Part II of Chapter 159, Florida Statutes, Sections 159.25 through 159.43
(herein called the "Act"), and the Bonds (hereinafter mentioned) are authorized
to be issued for purposes for which bonds are authorized to be issued under the
provisions of the Act. This Bond and the interest hereon shall not be deemed to
constitute a debt, liability or obligation of the Issuer or the State of Florida
or any political subdivision thereof, or a pledge of the faith and credit of the
Issuer or the State of Florida or any political subdivision thereof, but this
Bond shall be payable solely from the revenues provided therefor as hereinafter
described and the Issuer is not obligated to pay this Bond or the interest
hereon except from the revenues and proceeds pledged therefor under the
Indenture and neither the faith and credit nor the taxing power of the Issuer or
the State of Florida or any political subdivision thereof is pledged to the
payment of the principal of or the premium, if any, or interest on this Bond. No
covenant or agreement contained in this Bond shall be deemed to be a covenant or
agreement of any member, officer, agent or employee of the Issuer in his
individual capacity and no member of the Board of County Commissioners of the
Issuer nor any officer of the Issuer executing this Bond shall be liable
personally on this Bond or be subject to any personal liability in connection
with the issuance of this Bond.
This Bond is one of a duly authorized series of revenue refunding bonds
of the Issuer known as "Pollution Control Revenue Refunding Bonds, Series 1996
(Gulf Power Company Project)", issued for the purpose of refunding certain of
the Issuer's bonds heretofore issued to defray the cost of acquiring and
constructing certain air and water pollution control facilities. The Bonds of
this series initially aggregated Twelve Million Seventy-Five Thousand Dollars
($12,075,000) in authorized
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<PAGE>
principal amount. The Indenture provides for the issuance, under the conditions,
limitations and restrictions therein set forth, of additional Bonds for the
purpose of refunding Bonds of any series issued under the Indenture.
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 1st day of April, 1996, by and between the Issuer and SunTrust
Banks of Florida, Inc., Orlando, Florida, as Trustee (said bank 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 (hereinafter mentioned) may be
amended, and, by the acceptance of this Bond, the holder hereof assents to all
of the provisions of the Indenture.
This Bond is issued and the Indenture was made and entered into under
and pursuant to the Constitution and laws of the State of Florida, and
particularly the Act, and under and pursuant to resolutions duly adopted by the
Issuer.
The Issuer has entered into a Loan Agreement, dated as of April 1, 1996
(herein called the "Agreement"), with 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
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principal of and premium, if any, and interest on the Bonds as the same shall
become due and payable. 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 as defined in and 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 amounts so to be paid thereunder have been duly pledged and
assigned for that purpose. In addition, certain other rights of the Issuer under
the Agreement, including the Company's obligation (subject to certain
exceptions) to deliver to the Trustee concurrently with the issuance of each
series of Bonds a like principal amount of the Company's first mortgage bonds,
have been assigned to the Trustee to secure payment of such principal, premium,
if any, and interest under the Indenture.
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, 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 maturity, of authorized
denominations and bearing interest at the same rate.
The Bonds of this series are non-callable for redemption, 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 special 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.
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
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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 without coupons 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.
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, 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 registered Bond or Bonds without coupons, 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.
This Bond is issued with the intent that the laws of the State of
Florida shall govern its construction. As declared by the Act, this Bond shall
have all the qualities and incidents, including negotiability, of an investment
security under the Uniform Commercial Code of the State of Florida.
All acts, conditions and things required to happen, exist and be
performed precedent to and in the issuance of this Bond
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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.
IN WITNESS WHEREOF, Bay County, Florida, by resolution of its Board of
County Commissioners, has caused this Bond to be executed in its name and on its
behalf by the facsimile signature of the Chairman or Vice-Chairman of its Board
of County Commissioners, and by the manual or facsimile signature of its
Comptroller, ex-officio Clerk or a Deputy Clerk and a facsimile of its official
seal to be imprinted hereon.
Dated:
BAY COUNTY, FLORIDA
By:
Attest:
- -----------------------------
[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.
SUNTRUST BANKS OF
FLORIDA, INC., as Trustee
By:
Authorized Signature
WHEREAS, all acts, conditions and things required by the Constitution
and laws of the State of Florida to happen, exist and be performed precedent to
and in connection with the execution and delivery of this Indenture and the
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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; and
WHEREAS, 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 premium, 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 authentication of the Series 1996
Bonds and the Company's First Mortgage Bonds, 5 1/4% Pollution Control Series
due April 1, 2006, 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 notes 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 Series 1996 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 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
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the payment of the Bonds as aforesaid and 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 holders and owners, from
time to time, of said Bonds, or part thereof, as follows:
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ARTICLE I
DEFINITIONS
The terms "Act", "Agreement", "Board", "Company", "Issuer" and "Plant"
have the same meanings given and assigned to such words in the Recitals hereto.
The terms "First Mortgage", "First Mortgage Bonds", "Loan", "Notes", "Original
Agreement", "Project", "Refunded Bonds" and "Series 1996 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:
"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.
"Code" means the Internal Revenue Code of 1986, as
amended.
"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.
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"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.
"Supplemental Indenture" means the Supplemental Indenture dated as of
April 1, 1996 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 Twelve Million Seventy-Five Thousand Dollars ($12,075,000) for the
purpose of refunding the Refunded Bonds. Said Bonds shall be designated
"Pollution Control Revenue Refunding Bonds, Series 1996 (Gulf Power Company
Project)", shall bear interest (calculated on the basis of a year of 360 days
and twelve
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30-day months) at the rate of __________________________ per centum (____%) per
annum, which interest shall be payable semi-annually on the 1st days of April
and October in each year, commencing October 1, 1996, and shall mature, subject
to prior redemption as hereinafter set forth, on the 1st day of April, 2006.
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 (except that the Series 1996
Bonds shall be dated April 1, 1996 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 is 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 Series 1996 Bonds shall be April 1, 1996.
The Bonds shall be executed by the facsimile signature of the Chairman
or Vice-Chairman of the Board and by the manual or facsimile signature of its
Clerk or a Deputy Clerk and the seal of the Issuer or a facsimile thereof shall
be affixed thereto or imprinted thereon.
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 officer before the delivery of such Bonds,
such signature or such facsimile signature shall nevertheless be valid and
sufficient for all purposes as if such officer had remained
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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
delivery 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, 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 Bond of any series is registered at the
close of business on any record date (as hereinafter defined) with respect to
any interest payment date for the Bonds of such series shall be entitled to
receive the interest payable on such interest payment date notwithstanding the
cancellation of such 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 Bond (or any 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
Bonds of the affected series 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
fifteenth day of the month next preceding such interest payment date, if such
interest payment date shall be the first day of a month, or the first day of the
month in which such interest payment
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date shall fall, if such interest payment date shall be the fifteenth day of a
month, or, if such day shall be a legal holiday or a day on which banking
institutions in Orlando, 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
officer 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, together with an assignment duly executed by the owner or his
attorney or legal representative in such form as shall be satisfactory to 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 Trustee is hereby appointed as bond registrar (the "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 authorized
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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 premium, if any, 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 Series 1996 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 Series 1996 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 Series 1996 Bonds there
shall be delivered to the Trustee:
(a) A copy, certified by the Clerk or Deputy Clerk of the Board,
of the resolutions adopted by the Board 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
Series 1996 Bonds.
(b) An executed counterpart of the Agreement.
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(c) A certificate of the Company stating that the Company has
approved the price of the Series 1996 Bonds and the form and substance
of the Indenture as required by Section 2.2 of the Agreement.
(d) A request and authorization to the Trustee on behalf of the
Issuer, signed by the Chairman or Vice- Chairman of the Board, to
authenticate and deliver the Series 1996 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.
(e) A Note duly executed.
(f) An executed counterpart of the Supplemental
Indenture.
(g) First Mortgage Bonds duly executed and
authenticated.
(h) An opinion of nationally recognized counsel experienced on
the subject of municipal bonds that the interest on the Series 1996
Bonds is excluded from gross income for federal income tax purposes,
except for interest on any Series 1996 Bond for any period during which
it is held by a person who is a "substantial user" of the Project or a
"related person" as defined in the Code.
(i) A copy of the request filed by the Company with the Issuer
pursuant to the Original Agreement for the redemption of the Refunded
Bonds and a certified copy of the resolution of the Board calling the
Refunded Bonds for redemption.
Upon the issuance and delivery of the Series 1996 Bonds, the Trustee
shall apply the proceeds from the sale of the Series 1996 Bonds as follows:
(a) The accrued interest (if any) received from the
sale of the Series 1996 Bonds shall be deposited into the
Bond Fund; and
(b) The balance of such proceeds shall be deposited with the
trustee under the Trust Indenture dated as of October 1, 1976, pursuant
to which the Refunded Bonds were issued and secured, and shall be
applied solely to the redemption of the Refunded Bonds.
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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, 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 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, 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 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
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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
Series 1996 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 or sinking fund payments to become due prior to the selected
redemption date and any expenses in connection with such refunding (any such
Additional Bonds to be identified as "Refunding Bonds"). Before any Additional
Bonds shall be issued under the provisions of this Section 2.10, the Board shall
adopt a resolution authorizing the issuance of such Additional Bonds, fixing the
amount thereof and designating the outstanding Bonds to be refunded with the
proceeds of such Additional Bonds. Such Additional Bonds shall be designated,
shall be stated to mature on such date or dates and in such year or years, shall
bear interest, payable on such dates, at such rate or rates not exceeding the
maximum rate then permitted by law, and may be made redeemable at such times 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 Series 1996 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:
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(a) A copy, certified by the Clerk or Deputy Clerk of the Board,
of the resolution adopted by the Board 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) Executed counterparts of the Supplemental
Indenture relating to such Additional Bonds and any
amendment to the Agreement;
(d) An opinion of nationally recognized counsel experienced on
the subject of municipal bonds 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 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 Code, 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;
(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; and
(h) A copy of the request filed by the Company with
the Issuer for the refunding of outstanding Bonds, and a
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certified copy of the resolution of the Board with
respect to such refunding.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices. The Series
1996 Bonds are non-callable for redemption except as provided
in this Section 3.01.
The Bonds are subject to special 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.
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. 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.
Upon the mailing by the Trustee of a redemption notice in accordance
with this Section 3.02 for the purpose of redeeming Series 1996 Bonds, the
Trustee shall deliver a written demand to the First Mortgage Trustee in
accordance
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with the last paragraph of Section 2 of the Supplemental
Indenture.
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 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
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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 and without premium upon receipt by the Issuer of a written
notice from the Company stating the Company has determined that:
(i) Any federal, state or local body exercising governmental or
judicial authority has taken any action which results in the imposition
of unreasonable burdens or excessive liabilities with respect to the
Project or the Plant, rendering impracticable or uneconomical the
operation by the Company of either the Project or the Plant, including,
without limitation, the condemnation or taking by eminent domain of all
or substantially all of the Project or 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 the Plant as an efficient generating
facility uneconomical; or
(iii) The Project or the 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 the 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. When any Bonds shall be
cancelled by the Trustee or shall otherwise cease to be secured by the lien of
this Indenture as provided in Section 7.01 hereof, 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, such Bonds in a principal amount equal to, but not exceeding, the principal
amount of such Bonds. For the purposes of this Section 3.07, delivery to or
acquisition by the Trustee of Bonds for
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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.
SECTION 3.08. Satisfaction of First Mortgage Bonds. The
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Issuer and the Trustee agree that the obligations of the
Company to make payment 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 Series 1996 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 Series 1996 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.
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.
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 Florida, including particularly
and without limitation the Act, to issue the Series 1996 Bonds authorized hereby
and to execute this Indenture, to assign and pledge the Notes and the Agreement
and the 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 Series 1996
Bonds and the execution and delivery of this Indenture has been duly and
effectively taken; and that
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the Series 1996 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 Agreement or the First Mortgage Bonds, 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.
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
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the Bonds as shall be presented when due at the principal 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
matters herein provided for.
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 or
the State of Florida or any county, municipality or political subdivision
thereof, but are limited obligations payable solely from revenues and proceeds
derived from the Notes, the Agreement and the First Mortgage Bonds and as
provided herein.
SECTION 5.02. Creation of Bond Fund. There is hereby created and
established with the Trustee a trust fund to be designated "Bay County Pollution
Control Revenue Refunding Bonds, Series 1996 (Gulf Power Company Project) 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 Series 1996
Bonds consisting of accrued interest on the Series 1996 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;
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(ii) all other moneys received by the Trustee under and pursuant to any of the
provisions of the Agreement 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 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 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 Notes,
the Agreement 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 Series 1996 Bonds up to the date of their 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.
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
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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 or
the payment of Bonds including Bonds which are deemed to be paid within the
meaning of Section 7.01 hereof, 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.
ARTICLE VI
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INVESTMENTS
SECTION 6.01. Investment of Bond Fund Moneys. Any moneys held in the
Bond Fund shall be invested and reinvested by the Trustee, at the request of,
and as directed by, the Company in Government Obligations or other obligations
or securities then permitted by law. 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 and the interest accruing thereon and any profit realized from
such investments shall be credited to the Bond Fund and any loss resulting from
such investments shall be charged to the Bond Fund. The Trustee, upon direction
of the Company, shall sell and reduce to cash a sufficient amount of such
investments 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. Tax Covenants. The Issuer and the Company will not
directly or indirectly use or permit the use of any proceeds of the Bonds or any
other funds of the Issuer or the Company, or take or omit to take any action
that would cause the Bonds to be "arbitrage bonds" within the meaning of Section
148(a) of the Code or result in the loss of the exclusion from gross income for
federal income tax purposes of the interest paid on the Bonds. To that end, the
Issuer and the Company will comply with all requirements of the Code to the
extent applicable to the Bonds. If at any time the Issuer or the Company is of
the opinion that for purposes of this Section 6.02 it is necessary to restrict
or limit the yield on the investment of any moneys held by the Trustee under
this Indenture, the Issuer or the Company shall so instruct the Trustee in
writing, and the Trustee shall take such action as may be necessary in
accordance with such instructions.
Without limiting the generality of the foregoing, the Issuer and the
Company agree that there shall be paid from time to time all amounts required to
be rebated to the United States pursuant to Section 148(f) of the Code and any
temporary, proposed or final Treasury Regulations as may be applicable to the
Bonds from time to time. This covenant shall survive payment in full or
defeasance of the Bonds. The obligations imposed upon the Company by this
Section have been acknowledged and accepted by the Company in Section 4.8 of the
Agreement. The Issuer and the Trustee hereby covenant and agree to cooperate
fully with the Company regarding compliance with the provisions of this Article
VI and Section 4.8 of the Agreement.
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Notwithstanding any provision of this Section, if the Company provides
to the Trustee and the Issuer an opinion of nationally recognized bond counsel
to the effect that any action required under this Section is no longer required,
or to the effect that some further action is required, to maintain the exclusion
of interest on the Bonds from federal gross income, the Trustee and the Issuer
may conclusively rely on such opinion in complying with the provisions of this
Indenture, and the covenants under this Indenture shall be deemed to be modified
to that extent.
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 or the Company, 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 or the Company; 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.
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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.
Notwithstanding the satisfaction and discharge of this Indenture, the
rights of the Trustee under Section 9.02 hereof and the obligations of the
Trustee under Sections 5.04 and 5.07 hereof, shall survive, anything in this
Indenture to the contrary notwithstanding.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default. The occurrence of any
of the following events 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 acceleration; 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 and receipt of
indemnity to its satisfaction shall, by notice in writing delivered to the
Issuer and the Company, declare the
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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. Upon such acceleration, the Trustee
shall make written demand to the First Mortgage Trustee for redemption of the
First Mortgage Bonds.
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 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 this Article VIII.
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 aggregate principal amount of
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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;
(b) bring suit upon the Bonds; or
(c) 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, upon
providing the Trustee indemnity to its satisfaction, 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 of an event of default, and upon the filing of a
suit or other commencement of judicial proceedings to enforce
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the rights of the Trustee and of the Bondholders under this Indenture, the
Trustee shall, to the extent permitted by law, 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 of an event of default, to the
extent that such rights may then lawfully be waived, neither the Issuer, nor the
State of Florida, 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, and
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 (including reasonable
attorneys' fees), 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
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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.
(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
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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 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
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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.
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 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);
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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 default or cause said default to be
corrected within the applicable period; provided, however, if said default is
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 amount 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
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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 but shall be answerable for the conduct of the same in
accordance with the standard specified above, 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 the validity of the execution by the Issuer
of this Indenture or of any supplements hereto or instruments of further
assurance, or for the sufficiency of the security for the Bonds 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
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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 an event of 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
Clerk of the Board 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
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conclusively assume there is no event of 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 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, 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, 8.10, 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.
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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
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 is 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
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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 if a successor Trustee has been appointed at such time pursuant to Section
9.08 hereof, or upon the later 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 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
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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.
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.
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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.
SECTION 9.13. 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 also 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.
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders. The Issuer and the Trustee may,
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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,
as amended, or any similar federal statute hereafter in effect or to
permit the qualification of the Bonds for sale under the securities laws
of any of the states of the United States, 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, as amended, or similar federal statute;
(g) to evidence the succession of a new trustee
under this Indenture;
(h) to authorize different authorized denominations of the Bonds
and to make correlative amendments and modifications of this Indenture
regarding the exchangeability of the Bonds of different authorized
denominations, redemption of portions of Bonds of
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particular authorized denominations and similar
amendments and modifications of a technical nature; and
(i) to make such changes as may be necessary to comply with the
provisions of the Code relating to the exclusion of interest on the
Bonds from gross income thereunder.
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 the
execution of any such
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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.
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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 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 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, 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.
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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 or mailed by
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registered or certified mail, postage prepaid, or sent by telegram, addressed as
follows: if to the Issuer, to the Chairman of the Board of County Commissioners,
Bay County, Florida, P.O. Box 1818, Panama City, Florida 32402; if to the
Trustee, at ________________, Orlando, Florida _____, Attention: Corporate Trust
Department; and 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. 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 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 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, 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 Florida.
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.
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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 member, officer, agent or employee of the Issuer in his
individual capacity, and neither the members of the Board 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.
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IN WITNESS WHEREOF, Bay County, Florida has caused these presents to be
signed in its name and behalf by the Chairman or Vice-Chairman of its Board of
County Commissioners, and its official seal to be hereunto affixed and attested
by its Clerk or Deputy Clerk, and to evidence its acceptance of the trusts
hereby created SunTrust Banks of Florida, Inc., 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.
BAY COUNTY, FLORIDA
By:
Attest: Chairman of the Bay
County Board of County
Commissioners
Clerk of the Bay County
Board of County Commissioners
SUNTRUST BANKS OF
FLORIDA, INC.
By:
Title:__________________________
Attest:
Title:_______________________
