CERTIFICATE OF NOTIFICATION
Filed by
GULF POWER COMPANY
Pursuant to orders of the Securities and Exchange Commission dated September 27,
1993, December 15, 1993, September 26, 1994 and February 23, 1996 in the matter
of File No. 70-8229.
Gulf Power Company (the "Company") hereby certifies to said Commission,
pursuant to Rule 24, as follows with respect to the transactions described
particularly in Amendment No. 10 (Post-Effective No. 8) herein:
1. A Loan Agreement dated as of February 1, 1996 was made and entered
into by and between the Company and the Mississippi Business Finance Corporation
(the MBFC"), and all transactions relating thereto (including the issuance by
the Company of its promissory note dated February 29, 1996 pursuant thereto)
were carried out in accordance with the terms and conditions of and for the
purposes represented by the application, as amended, and of said orders with
respect thereto.
2. The issuance and delivery by the Company of $21,200,000 aggregate
principal amount of First Mortgage Bonds, 5 1/2% Pollution Control Series due
February 1, 2026 pursuant to the Supplemental Indenture dated as of February 1,
1996, between the Company and The Chase Manhattan Bank (National Association),
as Trustee, supplementing the Company's first mortgage bond Indenture, were
carried out in accordance with the terms and conditions of and for the purposes
represented by the application, as amended, and of said orders with respect
thereto.
3. Filed herewith are the following exhibits.
Exhibit A - Copy of the Supplemental Indenture, dated as of
February 1, 1996.
Exhibit B - Copy of Loan Agreement between the MBFC and the
Company, dated as of February 1, 1996.
Exhibit C - Copy of Trust Indenture of the MPFC, dated as of
February 1, 1996.
Exhibit D - Opinion of Beggs & Lane dated March 8, 1996.
Dated: March 12, 1996 GULF POWER COMPANY
By /s/ Wayne Boston
Wayne Boston
Assistant Secretary
__________________________________________________________________________
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
5 1/2% Pollution Control Series due February 1, 2026
Dated as of February 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 February 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 "5 1/2% Pollution
Control Series due February 1, 2026" (hereinafter sometimes referred to as the
"Forty-fifth 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 February 1, 2026; and
WHEREAS each of the bonds of the Forty-fifth Series is to be
substantially in the following form, with appropriate insertions and deletions,
to-wit:
[FORM OF BOND OF THE FORTY-FIFTH SERIES]
GULF POWER COMPANY
First Mortgage Bond, 5 1/2% Pollution
Control Series Due February 1, 2026
No.......... $..............
Gulf Power Company, a Maine corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to Hancock Bank,
Gulfport, Mississippi (as trustee under the Trust Indenture dated as of February
1, 1996 of the Mississippi Business Finance Corporation, relating to the Revenue
Bonds (hereinafter mentioned)) or registered assigns, the principal sum of
Dollars on February 1, 2026, 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 August 1,
1996, in which case from February 1, 1996, at the rate per annum, until the
principal hereof shall have become due and payable, specified in the title of
this bond, payable on
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February 1 and August 1 in each year commencing August 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 February 29, 1996 issued
pursuant to Section 3.2 of the Loan Agreement dated as of February 1, 1996
(hereinafter referred to as the "Agreement") between the Mississippi Business
Finance Corporation and the Company, sufficient to pay fully or partially the
then due principal of and premium, if any, and interest on the Mississippi
Business Finance Corporation 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 Section 5.02
of the Trust Indenture dated as of February 1, 1996 (hereinafter referred to as
the "Revenue Bond Indenture") of the Mississippi Business Finance Corporation to
Hancock Bank, Gulfport, Mississippi, 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
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indentures supplemental thereto, to which indenture and indentures supplemental
thereto (hereinafter referred to collectively as the "Indenture") reference is
hereby made for a description of the property mortgaged and pledged, the nature
and extent of the security and the rights, duties and immunities thereunder of
the Trustee and the rights of the holders of said bonds and of the Trustee and
of the Company in respect of such security, and the limitations on such rights.
By the terms of the Indenture the bonds to be secured thereby are issuable in
series which may vary as to date, amount, date of maturity, rate of interest and
in other respects as in the Indenture provided.
Upon notice given by mailing the same, by first class mail postage
prepaid, not less than thirty nor more than forty-five days prior to the date
fixed for redemption to each registered holder of a bond to be redeemed (in
whole or in part) at the last address of such holder appearing on the registry
books, any or all of the bonds of this series may be redeemed by the Company at
any time and from time to time by the payment of the principal amount thereof
and accrued interest thereon to the date fixed for redemption, if redeemed by
the operation of the improvement fund or the replacement provisions of the
Indenture or by the use of proceeds of released property, as more fully set
forth in the Indenture.
In the manner provided in the Indenture, the bonds of this series are
also redeemable in whole, by payment of the principal amount thereof plus
accrued interest thereon to the date fixed for redemption, upon receipt by the
Trustee of a written demand from the Revenue Bond Trustee stating that the
principal amount of all the Revenue Bonds then outstanding under the Revenue
Bond Indenture has been declared immediately due and payable pursuant to Section
8.02 of the Revenue Bond Indenture. As provided in the Indenture, the date fixed
for such redemption shall be not more than 180 days after receipt by the Trustee
of the aforesaid written demand and shall be specified in a notice of redemption
to be given not more than 10 nor less than 5 days prior to the date so fixed for
such redemption. As in the Indenture provided, such notice of redemption shall
be rescinded and become null and void for all purposes under the Indenture upon
rescission of the aforesaid written demand under the Revenue Bond Indenture, and
thereupon no redemption of the bonds of this series and no payments in respect
thereof as specified in such notice of redemption shall be effected or required.
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In the manner and to the extent provided in the Indenture, the bonds of
this series are also redeemable in whole at any time or in part from time to
time upon receipt by the Trustee of a written demand from the Revenue Bond
Trustee specifying a principal amount of Revenue Bonds which have been called
for redemption pursuant to the second or third paragraph of Section 3.01 of the
Revenue Bond Indenture. As and to the extent provided in the Indenture, bonds of
this series equal in principal amount to the principal amount of such Revenue
Bonds to be redeemed will be redeemed on the date fixed for redemption of the
Revenue Bonds at the principal amount of such bonds of this series and accrued
interest thereon to the date fixed for redemption, together (in the case of a
redemption coincident with a redemption of Revenue Bonds pursuant to the third
paragraph of Section 3.01 of the Revenue Bond Indenture) with a premium equal to
a percentage of the principal amount thereof determined as set forth in the
following tabulation:
If Redeemed During the Twelve Months' Period Ending the
Last Day of January,
Regular
Redemption
Year Premium
2002 2%
2003 1%
and without premium if redeemed on or after February 1, 2003.
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
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incorporators, stockholders, directors and officers, as such, being waived and
released by the holder and owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Indenture.
Every bond of this series shall be dated as of the date of
authentication.
This bond is transferable by the registered owner hereof, in person or
by attorney duly authorized, at the principal office of the Trustee, in the
Borough of Manhattan, The City of New York, but only in the manner prescribed in
the Indenture, upon the surrender and cancellation of this bond and the payment
of charges for transfer, and upon any such transfer a new bond or bonds of the
same series and maturity date and for the same aggregate principal amount, in
authorized denominations, will be issued to the transferee in exchange herefor.
The Company and the Trustee may deem and treat the person in whose name this
bond is registered as the absolute owner for the purpose of receiving payment
and for all other purposes. Bonds of this series shall be exchangeable for bonds
of other authorized denominations having the same aggregate principal amount, in
the manner and upon the conditions prescribed in the Indenture. However,
notwithstanding the provisions of the Indenture, no charge shall be made upon
any transfer or exchange of bonds of this series other than for any tax or taxes
or other governmental charge required to be paid by the Company.
This bond shall not be valid or become obligatory for any purpose unless
and until it shall have been authenticated by the execution by the Trustee or
its successor in trust under the Indenture of the certificate endorsed hereon.
IN WITNESS WHEREOF, Gulf Power Company has caused this bond to be
executed in its name by its President or one of its Vice Presidents by his
signature or a facsimile thereof, and its corporate seal or facsimile thereof to
be affixed hereto or imprinted hereon and attested by its Secretary or one
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of its Assistant Secretaries by his signature or a facsimile thereof.
Dated
GULF POWER COMPANY,
By: ___________________
President
Attest:
_______________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated therein,
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
As Trustee,
By: ______________________
Authorized Officer
AND WHEREAS all acts and things necessary to make the bonds, when
authenticated by the Trustee and issued as in the Indenture, as heretofore
supplemented and amended, and in this Supplemental Indenture provided, the
valid, binding and legal obligations of the Company, and to constitute the
Indenture, as heretofore supplemented and amended, and this Supplemental
Indenture valid, binding and legal instruments for the security thereof, have
been done and performed, and the creation, execution and delivery of the
Indenture, as heretofore supplemented and amended, and this Supplemental
Indenture and the creation, execution and issue of bonds subject to the terms
hereof and of the Indenture, have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, and of the acceptance
and purchase by the holders thereof of the bonds issued and to be issued under
the Indenture, and of the sum of One Dollar duly paid by the Trustee to the
Company, and of other good and valuable considerations, the
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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 $21,200,000 principal amount of bonds of the Forty-fifth
Series currently proposed to be issued and all other bonds which shall be issued
under the Indenture, or the Indenture as supplemented and amended, and for the
purpose of securing the faithful performance and observance of all covenants and
conditions therein and in any indenture supplemental thereto set forth, the
Company has given, granted, bargained, sold, transferred, assigned,
hypothecated, pledged, mortgaged, warranted, aliened and conveyed and by these
presents does give, grant, bargain, sell, transfer, assign, hypothecate, pledge,
mortgage, warrant, alien and convey unto The Chase Manhattan Bank (National
Association), as Trustee, as provided in the Indenture, and its successor or
successors in the trust thereby and hereby created and to its or their assigns
forever, all the right, title and interest of the Company in and to all
improvements and additions to property of the Company subject to the lien of the
Indenture made, constructed or otherwise acquired by it and not heretofore
described in the Indenture or any supplement thereto and not heretofore released
from the lien of the Indenture, together (subject to the provisions of Article X
of the Indenture) with the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, and does hereby confirm that the Company will not
cause or consent to a partition, either voluntary or through legal proceedings,
of property, whether herein described or heretofore or hereafter acquired, in
which its ownership shall be as a tenant in common except as permitted by and in
conformity with the provisions of the Indenture and particularly of Article X
thereof.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to said premises, property,
franchises and rights, or any thereof, referred to in the foregoing granting
clauses, with the reversion and reversions, remainder and remainders and
(subject to the provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
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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, 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:
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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-fifth Series"), and the form thereof shall be substantially
as hereinbefore set forth. Bonds of the Forty-fifth 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-fifth 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-fifth 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-fifth 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 February 1 and August 1 in each year
commencing August 1, 1996.
The principal of and premium, if any, and the interest on the bonds of
the Forty-fifth 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-fifth 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-fifth 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-fifth Series other
than for any tax or taxes or other governmental charge required to be paid by
the Company.
Any or all of the bonds of the Forty-fifth 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
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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-fifth 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 February 29, 1996 issued pursuant to Section 3.2 of the Loan Agreement
dated as of February 1, 1996 (hereinafter referred to as the "Agreement")
between the Mississippi Business Finance Corporation and the Company sufficient
to pay fully or partially the then due principal of and premium, if any, and
interest on the Mississippi Business Finance Corporation 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 Section 5.02 of the Trust Indenture dated as of February
1, 1996 (hereinafter referred to as the "Revenue Bond Indenture") of the
Mississippi Business Finance Corporation to Hancock Bank, Gulfport, Mississippi,
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-fifth Series shall have been
fully satisfied and discharged unless and until the Trustee shall have received
a written notice from the Revenue Bond Trustee stating (i) that timely payment
of the principal of or premium, if any, or interest on the Revenue Bonds has not
been made, (ii) that there are not sufficient available funds in such Bond Fund
to make such payment and (iii) the amount of funds required to make such
payment.
In addition to redemption as provided in Section 1 hereof, Bonds of the
Forty-fifth Series shall also be redeemable in whole upon receipt by the Trustee
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of a written demand for the redemption of the bonds of the Forty-fifth 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-fifth 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-fifth Series shall be
at the principal amount thereof and accrued interest thereon to the date fixed
for redemption, and such amount shall become and be due and payable, subject to
the first paragraph of this Section 2, on the date fixed for Demand Redemption
as above provided. Anything in this paragraph contained to the contrary
notwithstanding, if, after mailing of the Demand Redemption Notice and prior to
the date fixed for Demand Redemption, the Trustee shall have received a written
notice from the Revenue Bond Trustee that the Redemption Demand has been
rescinded or that the acceleration of maturity of the Revenue Bonds has been
rescinded, the Demand Redemption Notice shall thereupon, without further act of
the Trustee or the Company, be rescinded and become null and void for all
purposes hereunder and no redemption of the bonds of the Forty-fifth Series
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and no payments in respect thereof as specified in the Demand Redemption Notice
shall be effected or required.
Bonds of the Forty-fifth Series shall also be redeemable in whole at any
time, or in part from time to time (hereinafter called the "Regular
Redemption"), upon receipt by the Trustee of a written demand (hereinafter
referred to as the "Regular Redemption Demand") from the Revenue Bond Trustee
stating: (1) the principal amount of Revenue Bonds to be redeemed pursuant to
the third paragraph of Section 3.01 of the Revenue Bond Indenture; (2) the date
of such redemption and that notice thereof has been given as required by the
Revenue Bond Indenture; (3) that the Trustee shall call for redemption on the
stated date fixed for redemption of the Revenue Bonds a principal amount of
bonds of the Forty-fifth Series equal to the principal amount of Revenue Bonds
to be redeemed; and (4) that the Revenue Bond Trustee, as holder of all bonds of
the Forty-fifth Series then outstanding, waives notice of such redemption. The
Trustee may conclusively presume the statements contained in the Regular
Redemption Demand to be correct. Regular Redemption of the bonds of the
Forty-fifth Series shall be at the principal amount thereof and accrued interest
thereon to the date fixed for redemption, together with a premium equal to a
percentage of the principal amount thereof determined as set forth in the
tabulation appearing in the form of the bond hereinbefore set forth, and such
amount shall become and be due and payable, subject to the first paragraph of
this Section 2, on the date fixed for such Regular Redemption, which shall be
the date specified pursuant to item (2) of the Regular Redemption Demand as
above provided.
Bonds of the Forty-fifth 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-fifth Series equal to the principal amount of the Revenue
Bonds to be redeemed; and (4) that the Revenue Bond Trustee, as holder
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of all bonds of the Forty-fifth 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-fifth 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-fifth
Series shall be a legal holiday or a day on which banking institutions in the
Borough of Manhattan, The City of New York, are authorized by law to close, then
such interest payment date shall be the next succeeding day which shall not be a
legal holiday or a day on which such institutions are so authorized to close.
SECTION 4. Any written notice to the Trustee from the Revenue Bond
Trustee shall be signed by the Revenue Bond Trustee's duly authorized officer
therefor.
SECTION 5. The Company covenants that the provisions of Section 4 of the
Supplemental Indenture dated as of October 1, 1964, 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-fifth 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.
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<PAGE>
SECTION 8. The Trustee assumes no responsibility for or in respect of
the validity or sufficiency of this Supplemental Indenture or the due execution
hereof by the Company or for or in respect of the recitals and statements
contained herein, all of which recitals and statements are made solely by the
Company.
SECTION 9. This Supplemental Indenture may be executed in several
counterparts and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
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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 26th day of February, 1996 by GULF POWER
COMPANY in the presence of:
___________________________
Valerie Blackmon
___________________________
Gina Naar
<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:
___________________________
John T. Needham, Jr.
Assistant Secretary
4 Chase MetroTech Center
3rd Floor
Brooklyn, New York 11245
Signed, sealed and delivered this 23rd day of February, 1996 by THE CHASE
MANHATTAN BANK (National Association) in the presence of:
Name:_______________________
Name:_______________________
<PAGE>
STATE OF FLORIDA )
) ss:
COUNTY OF ESCAMBIA (
The foregoing instrument was acknowledged before me this 26th day of
February, 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
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF KINGS )
The foregoing instrument was acknowledged before me this 23rd day of
February, 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:
____________________________
<PAGE>
==============================================================================
MISSISSIPPI BUSINESS FINANCE CORPORATION
and
GULF POWER COMPANY
___________________
LOAN AGREEMENT
___________________
Dated as of February 1, 1996
Relating to $21,200,000 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.................................................2
SECTION 2.2. Issuance of Series 1996 Bonds;
Additional Bonds........................................2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer............................................3
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable...................................................3
SECTION 3.3. Obligation of the Company Unconditional...................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. No Warranty of Suitability by the Issuer..................5
SECTION 4.2. Use of Project............................................5
SECTION 4.3. Indemnity Against Claims..................................5
SECTION 4.4. Inspection of the Project.................................6
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<PAGE>
TABLE OF CONTENTS
(continued)
PAGE
SECTION 4.5. The Company to Maintain Its Corporate
Existence; Conditions Under Which
Exceptions Permitted......................................6
SECTION 4.6. Annual Statement..........................................7
SECTION 4.7. Further Assurances and Corrective
Instruments...............................................7
SECTION 4.8. Maintenance of Project by Company.........................7
SECTION 4.9. Redemption or Purchase of Bonds...........................7
SECTION 4.10. Tax Covenants.............................................8
SECTION 4.11. Ad Valorem Taxes..........................................8
SECTION 4.12. Continuing Disclosure.....................................8
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default.........................................9
SECTION 5.2. Remedies on Default......................................10
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...................................11
SECTION 6.2. Notices..................................................11
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................................12
SECTION 6.8. Applicable Law...........................................12
SECTION 6.9. Captions.................................................12
SECTION 6.10. Other Financing..........................................12
TESTIMONIUM..............................................................13
SIGNATURES AND SEALS ....................................................14
EXHIBIT A................................................................15
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<PAGE>
LOAN AGREEMENT dated as of February 1, 1996 between the MISSISSIPPI
BUSINESS FINANCE CORPORATION, a public corporation duly created and validly
existing pursuant to the Constitution and laws of the State of Mississippi (the
"Issuer"), authorized to exercise the powers conferred by Title 57, Chapter 10,
Article 7 of the Mississippi Code of 1972, as amended and supplemented (the
"Act"), and GULF POWER COMPANY, a corporation organized and existing under the
laws of the State of Maine and qualified and doing business as a foreign
corporation in the State of Mississippi (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 Mississippi or any
political subdivision thereof but shall be payable solely out of the revenue 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", "1954 Code", "Rebate Agreement" 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, including but not limited to the
Supplemental Indenture dated as of February 1, 1996.
"First Mortgage Bonds" means 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 February 1, 1996,
relating to the Bonds, between the Issuer and Hancock Bank, Gulfport,
<PAGE>
Mississippi, as Trustee, pursuant to which theBonds are authorized to be issued,
and including any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the Company of the
proceeds (which shall be deemed to include the underwriting discount, 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 Amended and Restated Installment Sale
Agreement dated as of May 1, 1981, between Jackson County, Mississippi, and the
Company.
"Project" means the pollution control facilities described
in the Original Agreement.
"Series 1981 Bonds" means the $21,200,000 Jackson County,
Mississippi Pollution Control Revenue Bonds (Gulf Power Company
Project) 1981 Series A.
"Series 1991 Bonds" means the $21,200,000 Jackson County, Mississippi
Pollution Control Revenue Refunding Bonds (Gulf Power Company Project) Series
1991 issued to provide funds to currently refund the Series 1981 Bonds.
"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 the acquisition, installation and construction of the Project
have been completed pursuant to the Original Agreement.
SECTION 2.2. Issuance of Series 1996 Bonds; Additional Bonds. In order
to provide funds to currently refund the Series 1991 Bonds, 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
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<PAGE>
deposit the proceeds thereof in accordance with the terms of the Indenture. The
Indenture shall be satisfactory in form and substance to the Company and shall
provide the manner in which, and the purposes for which, proceeds of Bonds may
be used and invested.
If no Event of Default shall have occurred and be continuing, the
Issuer will authorize the sale of and use its best efforts to sell from time to
time, to the extent permitted by law, Additional Bonds, in amounts specified by
the Company and upon the terms and conditions provided in the Indenture, for any
purpose permitted by the Indenture. The Issuer will deposit the proceeds of any
such Additional Bonds with the Trustee in accordance with the terms of the
Indenture.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the Loan
to the Company for the purpose, in the case of the proceeds of the Series 1996
Bonds, of redeeming the Series 1991 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 Series 1991 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 issuance of, and mature on the same maturity date
or dates as, the series of Bonds issued concurrently therewith. If, at the date
any payment on the Bonds is due, there are any available moneys in the Bond
Fund, such moneys shall be credited against the payment then due under the
Notes, first in respect of interest and then, to the extent of remaining moneys,
in respect of principal.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee and any paying agents under the Indenture, such fees,
charges and reasonable expenses to be paid directly to the Trustee or paying
agents for their respective accounts as and when such fees, charges and
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<PAGE>
reasonable expenses become due and payable, (ii) any expenses and costs
incurred or to be incurred by virtue of the issuance and sale of the Bonds,
(iii) any expenses in connection with any redemption of the Bonds, (iv) any
expenses in connection with the redemption of the aforementioned Series 1991
Bonds and (v) any amounts owed under the Rebate Agreement.
SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make the payments as provided in
this Agreement and the Notes and to perform and observe the other
agreements on its part contained herein shall be absolute and
unconditional notwithstanding failure of the title to the Project
or any part thereof, loss of title to (or the temporary use of)
the Project by virtue of the exercise by others of the power of
eminent domain, any acts or circumstances that may constitute
failure of consideration, destruction of or damage to the
Project, commercial frustration of purpose, any change in the tax
or other laws of the United States of America or of the State of
Mississippi 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 Section 3.2 hereof. The
Company may, however, at its own cost and expense and in its own
name or in the name of the Issuer, prosecute or defend any action
or proceeding or take any other action involving third persons
which the Company deems reasonably necessary in order to secure
or protect its right of possession, occupancy and use hereunder,
and in such event the Issuer hereby agrees to cooperate fully
with the Company and to take all action necessary to effect the
substitution of the Company for the Issuer in any such action or
proceeding if the Company shall so request.
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 obligations under this
Agreement and 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
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<PAGE>
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 and
pledge 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 4.3 and 5.3 hereof) and (iii) the First Mortgage Bonds. The
Company assents to such assignment and hereby agrees that, as to the Trustee,
its obligations to make such payments shall be absolute and shall not be subject
to any defense or any right of set-off, counterclaim or recoupment arising out
of any breach by the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or liability at any
time owing to the Company by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. No Warranty of Suitability by the Issuer. The Issuer
makes no warranty either express or implied as to the Project, including its
suitability for the Company's purposes or needs.
SECTION 4.2. Use of Project. The Issuer does hereby covenant and agree
that it will not take any action, other than pursuant to the exercise of its
rights under Section 5.2 of this Agreement, to prevent the Company from having
possession and enjoyment of the Project during the term of this Agreement and
will, at the request of the Company and at the Company's cost, reasonably
cooperate with the Company in order that the Company may have possession and
enjoyment of the 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.
SECTION 4.3. Indemnity Against Claims. The Company will pay and
discharge and will indemnify and hold harmless the Issuer and the Trustee
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<PAGE>
from (a) any lien or charge upon payments by the Company to the Issuer under
the Notes, the First Mortgage Bonds or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the Issuer
under the Notes, the First Mortgage Bonds or hereunder and (c) any and
all liability, damages, costs and expenses arising out of or resulting from the
transactions contemplated by this Agreement and the Indenture or in any way
related to the Project, 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 and/or the Trustee will give prompt written notice to the Company, and
the Company shall have the sole right and duty to assume, and will assume, the
defense thereof, with full power to litigate, compromise or settle the same in
its sole discretion.
SECTION 4.4. Inspection of the Project. The Company agrees that the
Issuer and its duly authorized agents may at reasonable times enter upon the
Project site and examine and inspect the Project and the books and records of
the Company with respect to the Project.
SECTION 4.5. 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 Mississippi, 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 4.5, 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 Mississippi corporation or is qualified to
do business in the State of Mississippi as a foreign corporation and that such
consolidation or merger does not result in the loss of the exclusion from
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<PAGE>
gross income for federal income tax purposes of interest on the outstanding
Bonds.
SECTION 4.6. 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
the Company pursuant to this Section 4.6 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, so long as the Company prepares
such an annual report.
SECTION 4.7. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Agreement.
SECTION 4.8. 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. In any instance where the Company determines that any portion of the
Project has become inadequate, obsolete, worn-out, unsuitable, undesirable or
unnecessary, the Company may remove such portion of the Project and sell,
trade-in, exchange or otherwise dispose of such removed portion without any
responsibility or accountability to the Issuer, the Trustee or the Bondholders
therefor.
SECTION 4.9. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture and then
applicable federal and state laws and regulations for the redemption or purchase
of Bonds upon receipt by the Issuer and the Trustee from the Company of a
written notice specifying:
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<PAGE>
(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 4.10. Tax Covenants. The Company covenants and agrees that it
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 103(b)(13) of the 1954 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 tax purposes of the interest paid on the Bonds to the
extent afforded under Section 103 of the 1954 Code. The Company acknowledges
Section 6.02 of the Indenture and agrees to perform all duties imposed upon it
by such Section including but not limited to its obligations under the Rebate
Agreement. Insofar as said Section imposes duties and responsibilities on the
Company, it is specifically incorporated herein by reference.
SECTION 4.11. Ad Valorem Taxes. The Project shall be subject to
assessment thereof for ad valorem taxes in the manner provided by law.
SECTION 4.12. Continuing Disclosure. It is understood, acknowledged and
agreed that the Issuer shall have no responsibility for compliance with the
continuing disclosure requirements set forth in Rule 15c-2-12 under the
Securities Exchange Act of 1934, as amended, as in effect on the date of this
Agreement, and shall have no liability to the underwriters of the Bonds,
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<PAGE>
the holders of the Bonds or any other person with respect to such disclosure
matters.
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 failure is
remedied.
(c) The dissolution or liquidation of the Company, except as
permitted by Section 4.5 hereof, or the commencement by the Company of
any case or proceeding seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other similar law
of the United States or any state, or adjudication of the Company as
bankrupt, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any proceeding
for its reorganization instituted under the provisions of Title 11 of
the United States Code, as amended, or under any similar statutory
provision which may hereafter be enacted.
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<PAGE>
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 4.5
and 4.10 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 any state 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 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
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<PAGE>
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 Issuer, the
Trustee and the paying agents and all other amounts required to be paid under
the Indenture shall have been paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should breach any of the provisions of the Notes or this
Agreement and the Issuer should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay to the Issuer
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In the event
any provision contained 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 Issuer, 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,
at 1306 Walter Sillers Building, 550 High Street, Jackson,
Mississippi 39205, Attention: Executive Director; if to the
Company, at 500 Bayfront Parkway, Pensacola, Florida 32501,
Attention: Treasurer, with copies to Southern Company Services,
Inc., 64 Perimeter Center East, Atlanta, Georgia 30346,
Attention: Corporate Finance Department; and if to the Trustee,
at 2510 14th Street, 1 Hancock Plaza, Gulfport, Mississippi
-11-
<PAGE>
39501, Attention: 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 4.5 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 shall be governed by and
construed in accordance with the laws of the State of Mississippi.
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 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.
MISSISSIPPI BUSINESS FINANCE
CORPORATION
[SEAL]
By: ______________________________
Executive Director
ATTEST:
_____________________________
Secretary
GULF POWER COMPANY
[SEAL]
By: ______________________________
Vice President
ATTEST:
_______________________________
Secretary
<PAGE>
STATE OF FLORIDA )
) ss:
COUNTY OF ESCAMBIA )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 29th day of February, 1996, within my
jurisdiction, the within named William T. Barry and James Vernon Smith, Sr., who
acknowledged that they are the Executive Director and Secretary of the
Mississippi Business Finance Corporation, and that in said representative
capacities they executed the above and foregoing instrument, after first have
been duly authorized so to do.
[SEAL] _________________________
Notary Public
My Commission Expires:
- --------------------------
STATE OF FLORIDA )
) ss:
COUNTY OF ESCAMBIA )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 26th day of February, 1996, within my
jurisdiction, the within named A. E. Scarbrough and Warren E. Tate, who
acknowledged that they are the Vice President and Secretary of Gulf Power
Company, a Maine corporation, and that for and on behalf of the said corporation
and as its act and deed they executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
[SEAL] _____________________________
Notary Public
My Commission Expires:
- --------------------------
<PAGE>
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
$__________ [Date]
GULF POWER COMPANY, a corporation organized and existing under the laws
of the State of Maine (the "Company"), acknowledges itself indebted and for
value received hereby promises to pay to the order of the Mississippi Business
Finance Corporation (the "Issuer"), and its successors and assigns, the
principal sum of ___________________ DOLLARS ($________ ) 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 Issuer 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 Issuer and the Company dated as of February 1, 1996,
pursuant to which the Issuer has loaned to the Company the proceeds of the sale
of the Issuer'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 Hancock Bank (the "Trustee"), acting
pursuant to a trust indenture dated as of February 1, 1996 (the "Indenture")
between the Issuer 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 Issuer, in funds which will be
immediately available on the day payment is due, amounts which, and at or before
times which, shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in whatever manner
the same shall become due, whether at stated maturity, upon redemption or
<PAGE>
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
[SEAL]
By:__________________________
Title:______________________
Attest:_______________________
Title:________________________
<PAGE>
ASSIGNMENT
Pay to the order of Hancock Bank, as assignee of the Mississippi
Business Finance Corporation, under the Trust Indenture, dated as of February 1,
1996, between the Mississippi Business Finance Corporation and Hancock Bank, as
Trustee, securing the payment of Mississippi Business Finance Corporation
Pollution Control Revenue Refunding Bonds, Series _____ (Gulf Power Company
Project), in the original principal amount of
$---------------.
Dated:__________________
MISSISSIPPI BUSINESS FINANCE
CORPORATION
By:__________________________
Title:_______________________
<PAGE>
============================================================================
MISSISSIPPI BUSINESS FINANCE CORPORATION
to
HANCOCK BANK, as Trustee
------------------------
TRUST INDENTURE
------------------------
Dated as of February 1, 1996
Relating to $21,200,000 Pollution Control
Revenue Refunding Bonds, Series 1996
(Gulf Power Company Project)
===========================================================================
<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............................8
FORM OF REGISTRATION AND VALIDATION CERTIFICATE............................8
GRANTING CLAUSE............................................................9
HABENDUM CLAUSE...........................................................10
ARTICLE I
DEFINITIONS
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds..................................12
SECTION 2.02. Issuance of Bonds...........................................12
SECTION 2.03. Form of Bonds...............................................12
SECTION 2.04. Details, Execution and Payment..............................13
SECTION 2.05. Authentication, Registration, Exchange, Transfer
and Ownership of Bonds....................................14
SECTION 2.06. Delivery of Series 1996 Bonds; Application of
Proceeds..................................................16
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
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.....................24
SECTION 4.08. Existence of Issuer.........................................25
SECTION 4.09. Continuing Disclosure.......................................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....................................26
SECTION 5.06. Non-presentment of Bonds....................................26
SECTION 5.07. Moneys to Be Held in Trust..................................27
SECTION 5.08. Repayment to the Company from the Bond Fund.................27
SECTION 5.09. Transfers to Rebate Fund....................................27
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Bond Fund Moneys..............................28
SECTION 6.02. Tax Covenants...............................................28
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<PAGE>
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................................................30
SECTION 8.03. Other Remedies..............................................31
SECTION 8.04. Legal Proceedings by Trustee................................31
SECTION 8.05. Right of Bondholders to Direct Proceedings..................32
SECTION 8.06. Appointment of Receivers....................................32
SECTION 8.07. Waiver......................................................32
SECTION 8.08. Application of Moneys.......................................32
SECTION 8.09. Remedies Vested in Trustee..................................34
SECTION 8.10. Rights and Remedies of Bondholders..........................34
SECTION 8.11. Termination of Proceedings..................................35
SECTION 8.12. Waivers of Events of Default................................35
SECTION 8.13. Notice of Default under Section 8.01(c);
Opportunity of Issuer and the Company to Cure
Such Default..............................................36
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts....................................37
SECTION 9.02. Fees, Charges and Expenses of Trustee.......................40
SECTION 9.03. Notice to Bondholders if an Event of Default
Occurs....................................................40
SECTION 9.04. Intervention by Trustee.....................................40
SECTION 9.05. Successor Trustee...........................................40
SECTION 9.06. Resignation by Trustee......................................40
SECTION 9.07. Removal of Trustee..........................................40
SECTION 9.08. Appointment of Successor Trustee............................41
SECTION 9.09. Concerning Any Successor Trustee............................41
SECTION 9.10. Successor Trustee as Bond Registrar, Custodian
of Bond Fund and Paying Agent.............................42
SECTION 9.11. Trustee and Issuer Required to Accept Directions
and Actions of Company....................................42
SECTION 9.12. No Transfer of Notes or First Mortgage Bonds
Held by the Trustee; Exception............................42
SECTION 9.13. Voting of First Mortgage Bonds Held by the
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<PAGE>
Trustee...................................................................43
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders....................................43
SECTION 10.02. Supplemental Indentures Requiring Consent of
Bondholders...............................................44
SECTION 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel.......................................46
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders..........................46
SECTION 11.02. Amendments, Etc., to Agreement Requiring
Consent of Bondholders....................................46
SECTION 11.03. Trustee Authorized to Join in Amendments;
Reliance on Counsel.......................................46
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, Etc., of Bondholders.............................47
SECTION 12.02. Limitation of Rights.......................................47
SECTION 12.03. Severability...............................................47
SECTION 12.04. Notices....................................................47
SECTION 12.05. Trustee as Paying Agent and Bond Registrar.................48
SECTION 12.06. Payments Due on Saturdays, Sundays and Holidays............48
SECTION 12.07. Counterparts...............................................48
SECTION 12.08. Applicable Provisions of Law...............................48
SECTION 12.09. Captions.................................................. 48
SECTION 12.10. No Liability of Officers.................................. 48
TESTIMONIUM...............................................................50
SIGNATURES AND SEALS......................................................51
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<PAGE>
THIS INDENTURE made and entered into as of February 1, 1996, by and
between the MISSISSIPPI BUSINESS FINANCE CORPORATION, a public corporation duly
created and validly existing pursuant to the Constitution and laws of the State
of Mississippi (the "Issuer"), and HANCOCK BANK, Gulfport, Mississippi, a bank
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
Mississippi, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Issuer is authorized by the provisions of Title 57,
Chapter 10, Article 7 of the Mississippi Code of 1972, as amended and
supplemented (the "Act"), among other things, to provide financial assistance to
businesses in the State of Mississippi by providing loans, guarantees, insurance
and other assistance to businesses, thereby encouraging the investment of
private capital in businesses in the State of Mississippi, and to finance such
assistance to businesses by the issuance of revenue bonds; and
WHEREAS, pursuant to its statutory powers, Jackson County, Mississippi
(the "County") has entered into an Installment Sale Agreement dated as of April
1, 1991 with Gulf Power Company, a corporation organized and existing under the
laws of the State of Maine (the "Company"), pursuant to which the County issued
and sold its Pollution Control Revenue Refunding Bonds (Gulf Power Company
Project) Series 1991 (the "Series 1991 Bonds") in the aggregate principal amount
of $21,200,000 in order, inter alia, to refinance the cost of acquiring,
installing and constructing certain pollution control facilities for use in
connection with the Victor J. Daniel, Jr. Electric Generating Plant ("Plant
Daniel") located in Jackson County, Mississippi, which facilities comprise the
Project (as defined in the Agreement hereinafter mentioned); and
WHEREAS, the Issuer and the Company have entered into a Loan Agreement
dated as of February 1, 1996 (the "Agreement") providing 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 same stated rate or rates of interest as such series of Bonds; and that as
security for its obligation to pay such promissory notes the Company will
deliver to the Trustee, concurrently with the issuance of each
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<PAGE>
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 Directors of the Issuer (the "Board"); and
WHEREAS, in order to provide funds to currently refund the Series 1991
Bonds, 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 $21,200,000; and
WHEREAS, the Issuer has determined that the Series 1996 Bonds and the
certificate of authentication by the Trustee and the certificate of registration
and validation to be endorsed on all the Series 1996 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 MISSISSIPPI
MISSISSIPPI BUSINESS FINANCE CORPORATION
POLLUTION CONTROL REVENUE REFUNDING BOND, SERIES 1996
(Gulf Power Company Project)
MISSISSIPPI BUSINESS FINANCE CORPORATION (herein called the "Issuer"),
a public corporation duly created and validly existing pursuant to the
Constitution and laws of the State of Mississippi, 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
February, 2026 (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 said
special fund, to the registered owner hereof by check or draft mailed to the
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<PAGE>
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 August 1, 1996, in which case from February 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
February and August (commencing August 1, 1996) in each year in like coin or
currency.
The interest payable on any February 1 or August 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 January 15 or July 15, as the case may be, next
preceding such interest payment date or, if such January 15 or July 15 shall be
a legal holiday or a day on which banking institutions in Gulfport, Mississippi,
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 public corporation duly created and validly existing
pursuant to the Constitution and laws of the State of Mississippi. The Bonds
(hereinafter mentioned) are authorized to be issued for purposes for which bonds
are authorized to be issued under the provisions of Title 57, Chapter 10,
Article 7 of the Mississippi Code of 1972, as amended and supplemented (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 Mississippi or any
political subdivision thereof, or a pledge of the faith and credit of the Issuer
or the State of Mississippi 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 and neither the
faith and credit nor the taxing power of the Issuer or the State of Mississippi
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 Directors 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
-3-
<PAGE>
Refunding Bonds, Series 1996 (Gulf Power Company Project)", issued for the
purpose of refunding the $21,200,000 Jackson County, Mississippi Pollution
Control Revenue Refunding Bonds (Gulf Power Company Project) Series 1991 related
to the refinancing of the acquisition, installation and construction of certain
pollution control facilities (herein called the "Project") for use in connection
with Plant Daniel located in Jackson County, Mississippi. The Bonds of this
series initially authorized aggregate Twenty-One Million Two Hundred Thousand
Dollars ($21,200,000) in 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 February, 1996, by and between the Issuer and Hancock
Bank, Gulfport, Mississippi, 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 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 Mississippi, 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 February 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
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<PAGE>
the Loan and the Company's obligation to repay the same, the Company has
executed and delivered its non-negotiable promissory note and has agreed to
issue additional such notes concurrently with the issuance of additional series
of Bonds (herein called the "Notes"). The Notes provide for the repayment by
the Company of the Loan, including interest thereon, in installments sufficient
to pay the principal of and premium, if any, and interest on the Bonds as the
same shall become due and payable. The Notes provide that the amounts so to be
paid 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 prior to
February 1, 2001, 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.
The Bonds of this series are also subject to redemption by the Issuer
prior to maturity on or after February 1, 2001, in whole or in part at any time
(but if in part by lot or in such other random manner as the Trustee in its
discretion may determine), at the redemption prices (expressed as percentages of
principal amount) set forth in the table below plus accrued interest to the
redemption date.
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Redemption Period Redemption
(all dates inclusive) Price
February 1, 2001 through January 31, 2002.......................102%
February 1, 2002 through January 31, 2003.......................101%
February 1, 2003 and thereafter.................................100%
Any such redemption, either in whole or in part, shall be made upon at
least thirty (30) days' prior notice as provided in the Indenture, and shall be
made in the manner and under the terms and conditions provided in the Indenture.
On the date designated for redemption, notice having been given and moneys for
payment of the redemption price and accrued interest being held by the Trustee
or by the paying agents, all as provided in the Indenture, the Bonds or portions
of Bonds so called for redemption shall become and be due and payable at the
redemption price provided for redemption of such Bonds or such portions thereof
on such date, interest on such Bonds or such portions thereof so called for
redemption shall cease to accrue, such Bonds or such portions thereof so called
for redemption shall cease to be entitled to any benefit or security under the
Indenture, and the registered owners thereof shall have no rights in respect of
such Bonds or such portions thereof so called for redemption except to receive
payment of the redemption price and accrued interest thereon so held by the
Trustee or by the paying agents. If a portion of this Bond shall be called for
redemption, a new registered Bond 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
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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
Mississippi shall govern its construction. As declared by the Act and other
applicable laws of the State of Mississippi, this Bond shall have all the
qualities and incidents, including negotiability, of an investment security
under the Uniform Commercial Code of the State of Mississippi.
All acts, conditions and things required to happen, exist and be
performed precedent to and in the issuance of this Bond and the execution of the
Indenture have happened, exist and have been performed as so required.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any benefit or security under the Indenture until it shall have been
authenticated by the execution by the Trustee of the certificate of
authentication endorsed hereon.
IN WITNESS WHEREOF, Mississippi Business Finance Corporation, by
resolution of its Board of Directors, has caused this Bond to be executed in its
name and on its behalf by the facsimile signature of its Executive Director, and
by the manual or facsimile signature of its Secretary and a facsimile of its
seal to be imprinted hereon.
Dated:
MISSISSIPPI BUSINESS FINANCE
CORPORATION
(SEAL)
By:_________________________
Executive Director
Attest:
___________________
Secretary
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[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.
HANCOCK BANK, as Trustee
By:_____________________
Authorized Signature
[FORM OF REGISTRATION AND VALIDATION CERTIFICATE]
(To be endorsed on all Bonds)
STATE OF MISSISSIPPI )
COUNTY OF HINDS ) SS:
The undersigned, Secretary of the Mississippi Business Finance
Corporation, does hereby certify that the within Bond has been duly registered
by me pursuant to law in a book kept in my office for that purpose; and that the
within Bond has been validated by decree of the Chancery Court of the First
Judicial District of Hinds County, Mississippi, rendered on the 28th day of
February, 1996.
____________________________
Secretary of the Mississippi
Business Finance Corporation
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<PAGE>
WHEREAS, all acts, conditions and things required by the Constitution
and laws of the State of Mississippi to happen, exist and be performed precedent
to and in connection with the execution and delivery of this Indenture and the
Agreement have happened, exist and have been performed as so required, in order
to make this Indenture a valid and binding trust indenture for the security of
the Bonds in accordance with its terms and in order to make the Agreement a
valid and binding 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 issuance of the Series 1996 Bonds
and the Company's First Mortgage Bonds, 5 1/2% Pollution Control Series due
February 1, 2026, and will cause the Company to deliver any other of its 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 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 4.3 and 5.3 of the Agreement) as security
for 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
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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 Issuer, 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 or the
Company; 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:
ARTICLE I
DEFINITIONS
The terms "Act", "Agreement", "Board", "Company", "County", "Issuer",
"Plant Daniel" and "Series 1991 Bonds" have the same meanings given and assigned
to such words in the Recitals hereto.
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The terms "First Mortgage", "First Mortgage Bonds", "Loan", "Notes", "Project"
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 timely 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 timely 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.
"1954 Code" means the Internal Revenue Code of 1954, as
amended.
"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);
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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.
"Rebate Agreement" has the meaning set forth in Section 5.09 hereof.
"Supplemental Indenture" means the Supplemental Indenture dated as of
February 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 Twenty-One Million Two Hundred Thousand Dollars ($21,200,000) for the
purpose of currently refunding the Series 1991 Bonds related to the refinancing
of the acquisition, installation and construction of the Project. 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 30-day months) at the rate of Five and One-Half per
centum (5 1/2%) per annum, which interest shall be payable semi-annually on the
1st days of February and August in each year, commencing August 1, 1996, and
shall mature, subject to prior redemption as hereinafter set forth, on the 1st
day of February, 2026.
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
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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, 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
specified for such series, which date, in the case of the Series 1996 Bonds,
shall be February 1, 1996.
The Bonds shall be executed by the facsimile signature of the Executive
Director of the Issuer and by the manual or facsimile signature of its Secretary
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 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
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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 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 Gulfport, Mississippi 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.
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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 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.
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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 Secretary of the Issuer, of the
resolutions adopted by the Board authorizing the execution and delivery
of the Agreement, authorizing the acceptance and assignment of a Note,
and authorizing the execution and delivery of this Indenture and the
issuance of the Series 1996 Bonds.
(b) An executed counterpart of the Agreement.
(c) A certificate of the Company stating that the Company has
approved the issuance of the Series 1996 Bonds and the price thereof 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 Executive Director of the Issuer, 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 on behalf of the Company and
assigned to the Trustee.
(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 and acceptable to the Trustee 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 1954 Code.
(i) A copy of the request filed by the Company with
the County for the redemption of the Series 1991 Bonds, and
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a certified copy of the resolutions of the County calling
the Series 1991 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 April 1, 1991, pursuant
to which the Series 1991 Bonds were issued and secured, and shall be
applied solely to the redemption of the Series 1991 Bonds within 90
days after the date of initial issuance of the Series 1996 Bonds.
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 series and 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
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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 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 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.
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Such Additional Bonds shall be executed substantially in the form and
manner hereinabove set forth and shall be deposited with the Trustee for
authentication, but before such Additional Bonds shall be authenticated and
delivered by the Trustee, there shall be delivered to the Trustee the following:
(a) A copy, certified by the Secretary of the Issuer, of the
resolution adopted by the Board authorizing the issuance of such
Additional Bonds in the amount specified therein, authorizing the
acceptance and assignment of a Note, and providing for the application
of the proceeds.
(b) A certificate stating that the Company has approved the
issuance of such Additional Bonds, including the terms, manner of
issuance, purchase price and disposition of the proceeds thereof, and
the terms and conditions of any supplement to this Indenture entered
into in connection with such Additional Bonds.
(c) An executed counterpart of any amendment to the
Agreement.
(d) An opinion of nationally recognized counsel experienced on
the subject of municipal bonds and acceptable to the Trustee that the
issuance of such Additional Bonds and the application of the proceeds
of such Additional Bonds to the purpose or purposes described in the
resolution mentioned in clause (a) of this Section 2.10 will not result
in the interest on any Bonds theretofore issued under this Indenture
and then outstanding or any portion thereof becoming 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 1954 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 on behalf of the Company and
assigned to the Trustee.
(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.
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(h) A copy of the request filed by the Company with the Issuer
for the refunding of outstanding Bonds, and a 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 4.9 of the Agreement, pursuant to the special
redemption provisions of Section 3.06 hereof at the times specified in the
notice given by the Issuer as provided in Section 3.06 hereof at the principal
amount thereof plus accrued interest to the redemption date but without premium.
The Series 1996 Bonds are subject to redemption by the Issuer prior to
maturity on or after February 1, 2001, in whole or in part at any time, as
requested by the Company pursuant to Section 4.9 of the Agreement, at the
redemption prices (expressed as percentages of principal amount) set forth in
the table below plus accrued interest to the redemption date:
Redemption Period Redemption
(all dates inclusive) Price
February 1, 2001 through January 31, 2002. . 102%
February 1, 2002 through January 31, 2003. . 101
February 1, 2003 and thereafter. . . . . . . 100
If less than all of the Bonds of a series shall be called for
redemption, the particular Bonds or portions of Bonds to be redeemed shall be
selected by the Trustee by lot or in such other random manner as the Trustee in
its discretion may determine.
SECTION 3.02. Notice of Redemption. At least thirty (30) days before
the redemption date of any Bonds, either in whole or in part, the Trustee shall
cause a notice of any such redemption to be mailed, postage prepaid, to all
owners of Bonds to be redeemed in whole or in part at their addresses as they
appear on the registration books hereinabove provided for. 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
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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 with the penultimate or last paragraph, as the case may be, 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
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period of five (5) years after the date on which such Bonds shall have become
due and payable shall upon request in writing be paid to the Company or to such
officer, board or body as may then be entitled by law to receive the same, and
thereafter the holders of such Bonds shall look only to the Company or to such
officer, board or body, as the case may be, for payment and then only to the
extent of the amount so received without any interest thereon, and the Trustee,
the Issuer and the paying agents shall have no responsibility with respect to
such moneys.
SECTION 3.06. Special Redemption. The Bonds are subject to redemption
in whole at any time and without premium upon receipt by the Trustee and 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 Plant Daniel, rendering impracticable or
uneconomical the operation by the Company of either the Project or
Plant Daniel, including, without limitation, the condemnation or taking
by eminent domain of all or substantially all of the Project or Plant
Daniel; 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 Plant Daniel as an efficient generating
facility uneconomical; or
(iii) the Project or Plant Daniel has been damaged or
destroyed to such an extent that it is not practicable or desirable to
rebuild, repair or restore the Project or Plant Daniel.
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
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acquisition by the Trustee of Bonds for cancellation (other than in connection
with a permitted exchange or registration of transfer of ownership) shall be
deemed to constitute receipt by the Trustee of moneys sufficient to pay,
purchase or redeem the Bonds so delivered.
SECTION 3.08. Satisfaction of First Mortgage Bonds. The 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 Mississippi, including
particularly and without limitation the Act, to issue the Series 1996 Bonds
authorized hereby and to execute this Indenture, to accept, 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 and the Agreement has been duly and effectively taken; and that 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.
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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, the Agreement 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 Project or any part thereof, 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 shall
cause, at the direction of the Company, the necessary arrangements to be made
through the Trustee and to be thereafter continued for the designation of
additional paying agents and for providing for the payment of such of the Bonds
as shall be presented when due at the 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.
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SECTION 4.08. Existence of Issuer. The Issuer covenants that it will at
all times maintain its corporate existence and will duly procure any necessary
renewals and extensions thereof; will use its best efforts to maintain, preserve
and renew all the rights, powers, privileges and franchises owned by it; and
will comply with all valid acts, rules, regulations and orders of any
legislative, executive, judicial or administrative body applicable to the
Project and the matters herein provided for.
SECTION 4.09. Continuing Disclosure. It is understood, acknowledged and
agreed that the Issuer shall have no responsibility for compliance with the
continuing disclosure requirements set forth in Rule 15c-2-12 under the
Securities Exchange Act of 1934, as amended, as in effect on the date of this
Indenture, and shall have no liability to the underwriters of the Bonds, the
holders of the Bonds or any other person with respect to such disclosure
matters.
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 Mississippi or any county, municipality or political subdivision
thereof, but are limited special 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 "Mississippi Business
Finance Corporation 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 and the Agreement; (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
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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 and the Agreement 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 4.9 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
the Agreement 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 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
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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 Issuer, the Trustee and any additional
paying agent and all other amounts required to be paid hereunder and under the
Rebate Agreement, shall be repaid to the Company as provided in Section 6.5 of
the Agreement.
SECTION 5.09. Transfers to Rebate Fund. Anything contained in this
Indenture to the contrary notwithstanding (a) the "Rebate Fund" established
under the Arbitrage Rebate Agreement by and among the Issuer, the Trustee and
the Company dated as of February 1, 1996 and related to the Bonds (the "Rebate
Agreement") shall not be considered part of the "trust estate" created or
pledged by this Indenture and (b) the Trustee shall be permitted to transfer
money on deposit in the Bond Fund to the Rebate Fund established under the
Rebate Agreement to satisfy the provisions of the Rebate Agreement.
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ARTICLE VI
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. Such investments may be made through the
investment department of the Trustee. 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 the extent
afforded under Section 103 of the 1954 Code. To that end, the Issuer and the
Company will comply with all requirements of the Code and the 1954 Code to the
extent applicable to the Bonds. In the event that 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.
The Company, the Issuer and the Trustee covenant to comply with the
provisions of the Rebate Agreement as the Rebate Agreement may be amended or
supplemented in accordance with its terms, and in compliance therewith, the
Issuer hereby agrees to establish with the Trustee a Rebate Fund under the
Rebate Agreement, which shall not be a trust fund under this Indenture, and the
terms of and provisions governing which shall be set forth in the Rebate
Agreement; provided that said compliance shall not be required if the Issuer or
the Company delivers to the Trustee an opinion of nationally recognized bond
counsel to the effect that compliance is not required to preserve the exclusion
from gross income for federal income tax purposes of interest paid on the Bonds.
In the event of any conflict between
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the provisions of the Rebate Agreement and the provisions of this Indenture, the
provisions of the Rebate Agreement shall govern. 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 4.10 of the Agreement.
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.
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.
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Notwithstanding the satisfaction and discharge of this Indenture, the
rights of the Trustee under Sections 9.02, 9.05 and 9.06 hereof, the obligations
of the Trustee under Sections 5.04, 5.06 and 5.07 hereof and the obligations of
the Company under Section 6.02 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. If any of the following
events occur, it is hereby defined and declared to be and to
constitute an "event of default":
(a) default in the payment when due of any interest on any
Bond; or
(b) default in the payment when due of the principal of, or premium, if
any, on any Bond, whether at the stated maturity thereof, or upon proceedings
for redemption thereof, or upon the maturity thereof by 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 shall, by notice in
writing delivered to the Issuer and the Company, declare the principal of all
Bonds then outstanding and the interest accrued thereon immediately due and
payable; and such principal and interest shall thereupon become and be
immediately due and payable. 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
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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 Issuer, 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 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
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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 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 Mississippi, 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
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and expenses of the proceedings resulting in the collection of such moneys and
of the expenses, liabilities and advances incurred or made by the Trustee, be
deposited in the Bond Fund and all moneys (except moneys held in separate
accounts by the Trustee pursuant to Sections 3.03, 3.05 and 5.06 hereof) in the
Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have become or shall
have been declared due and payable, all such moneys shall be applied:
FIRST: To the payment of all amounts owed the
United States of America under the Rebate Agreement;
SECOND: 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
THIRD: To the payment to the persons entitled thereto of the
unpaid principal of and premium, if any, on any of the Bonds which
shall have become due (other than Bonds matured or called for
redemption for the payment of which moneys are held pursuant to the
provisions of this Indenture), in the order of their due dates, with
interest on such Bonds from the respective dates upon which they became
due and, if the amount available shall not be sufficient to pay in full
Bonds due on any particular date, together with such interest, then to
the payment ratably, according to the amount of principal due on such
date, to the persons entitled thereto without any discrimination or
privilege.
(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 all amounts owed the United States of America under the Rebate
Agreement and then 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
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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 Issuer, the Trustee and any paying agents have been paid and
all amounts owed the United States of America under the Rebate Agreement 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
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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) such holders have offered to the Trustee indemnity as provided in
Section 9.01(l) hereof, and (iv) the Trustee shall thereafter fail or refuse to
exercise the powers hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and offer of
indemnity are hereby declared in every case at the option of the Trustee to be
conditions precedent to the execution of the powers and trusts of this
Indenture, and to any action or cause of action for the enforcement of this
Indenture, or for the appointment of a receiver or for any other remedy
hereunder; it being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by its, his or their action or to enforce
any right hereunder except in the manner herein provided, and that all
proceedings at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal and ratable benefit of the holders of
all Bonds then outstanding. Nothing in this Indenture contained shall, however,
affect or impair the right of any Bondholder to enforce the payment of the
principal of and premium, if any, and interest on any Bond at and after the
maturity thereof, or the obligation of the Issuer to pay the principal of and
premium, if any, and interest on each of the Bonds issued hereunder to the
respective holders thereof at the time and place, from the source and in the
manner in the Bonds expressed.
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
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or rescission, all arrears of interest, with interest (to the extent
permitted by law) at the rate borne by the Bonds in respect of which such
default shall have occurred on overdue installments of interest or all arrears
of payments of principal when due, as the case may be, and all expenses of the
Trustee in connection with such default shall have been paid or provided for,
and in case of any such waiver or rescission, or in the case any proceeding
taken by the Trustee on account of any such default shall have been discontinued
or abandoned or determined adversely, then and in every such case the Issuer,
the Trustee and the Bondholders shall be restored to their former positions and
rights hereunder respectively, but no such waiver or rescission shall extend to
any subsequent or other default, or impair any right consequent thereon.
SECTION 8.13. Notice of Default under Section 8.01(c); Opportunity of
Issuer and the Company to Cure Such Default. Anything herein to the contrary
notwithstanding, no default under Section 8.01(c) hereof shall constitute an
event of default until actual notice of such default by registered or certified
mail shall be given to the Issuer and the Company by the Trustee or by the
holder or holders of not less than 25% in aggregate principal amount of all
Bonds outstanding (with a copy to the Trustee) 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 and the Agreement, the Trustee shall immediately give written
notice to the Company specifying such failure.
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ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts, but
only upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any event of
default and after the curing or waiver of all events of default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
event of default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent corporate trustee would exercise or use under
the circumstances in the enforcement of a corporate indenture.
(b) The Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents,
receivers or employees 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
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Trustee may become the owner of Bonds secured hereby with the same
rights which it would have if not the Trustee. To the extent permitted
by law, the Trustee may also receive tenders and purchase in good faith
Bonds from itself, including any department, affiliate or subsidiary,
with like effect as if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the owner of any Bond,
shall be conclusive and binding upon all future owners of the same Bond
and upon owners of Bonds issued in exchange therefor or in place
thereof.
(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
Secretary of the Issuer under the Issuer's seal to the effect that a
resolution in the form therein set forth has been adopted by the Issuer
as conclusive evidence that such resolution has been duly adopted, and
is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and it
shall not be answerable for other than its negligence or willful
default.
(h) The Trustee shall not be required to take notice or be
deemed to have notice of any event of default hereunder except failure
by the Issuer to cause to be made any of the payments to the Trustee
required to be made by Article IV hereof or the existence of an event
of default described in Section 8.01(c) hereof, unless the Trustee
shall be specifically notified in writing of such event of default by
the Issuer or by the holders of at least 25% in aggregate principal
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amount of Bonds then outstanding; and all notices or other
instruments required by this Indenture to be delivered to the
Trustee must, in order to be effective, be delivered at the
principal corporate trust office of the Trustee, and in the absence
of such notice so delivered the Trustee may conclusively
assume there is no 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.
(1) 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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(n) No provision of the Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers.
SECTION 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall
be entitled to payment and reimbursement for 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
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giving thirty days' written notice to the Issuer and the Company, served
personally or sent by registered or certified mail, and to each owner of
Bonds then outstanding, sent by registered or certified mail, and such
resignation shall take effect at the end of such thirty days 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 (a) 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, or (b) to the
Trustee and the owners of all Bonds then outstanding, and signed by the Issuer
and the Company.
SECTION 9.08. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder,
or in case it shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor shall be appointed
by the Issuer at the direction of the Company. The Issuer shall cause notice of
such appointment to be given in the same manner as the giving of notices of
redemption as set forth in Section 3.02 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the owners of a majority
in aggregate principal amount of Bonds then outstanding. Every such successor
Trustee appointed pursuant to the provisions of this Section 9.08 shall be a
trust company or bank in good standing having a reported capital, surplus and
undivided profits of not less than $25,000,000, if there be such an institution
willing, qualified and able to accept the trusts upon reasonable and customary
terms.
SECTION 9.09. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all of the estates, properties,
rights, powers, trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Issuer, or of its
successor, execute and deliver an instrument transferring to such successor
Trustee all the estates, properties, rights, powers and trusts of such
predecessor hereunder, and every predecessor Trustee shall deliver all
securities and moneys held by it as Trustee hereunder to its successor. Should
any instrument in writing from the Issuer be required by any successor Trustee
for more fully and certainly vesting in such successor the estate, rights,
powers
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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 of the Bond Fund and a paying agent.
SECTION 9.11. Trustee and Issuer Required to Accept Directions and
Actions of Company. Whenever, after a reasonable request by the Company, the
Issuer shall fail, refuse or neglect to give any direction to the Trustee or to
require the Trustee to take any action which the Issuer is required to have the
Trustee take pursuant to the provisions of the Agreement or this Indenture, the
Company as agent of the Issuer may give any such direction to the Trustee or
require the Trustee to take any such action, and the Trustee is hereby
irrevocably empowered and directed to accept such direction from the Company as
sufficient for all purposes of this Indenture. The Company shall have the right
as agent of the Issuer to cause the Trustee to comply with any of the Trustee's
obligations under this Indenture to the same extent that the Issuer is empowered
so to do.
Certain actions or failures to act by the Issuer under this Indenture
may create or result in an event of default under this Indenture and the
Company, as agent of the Issuer, may to the extent permitted by law perform any
and all acts or take such action as may be necessary for and on behalf of the
Issuer to prevent or correct said event of default and the Trustee shall take or
accept such performance by the Company as performance by the Issuer in such
event.
The Issuer hereby makes, constitutes and appoints the Company
irrevocably as its agent to give all directions, do all things and perform all
acts provided, and to the extent so provided, by this Section 9.11.
SECTION 9.12. No Transfer of Notes or First Mortgage Bonds
Held by the Trustee; Exception. Except as required to effect an
assignment to a successor Trustee, the Trustee shall not sell, assign or
transfer the Agreement, the Notes or First Mortgage Bonds, and the
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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. So long
as no event of default shall have occurred and be continuing, 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, based
on the advice of the First Mortgage 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, 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
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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
hereunder; and
(h) to make such changes as may be necessary to comply with
the provisions of the 1954 Code or 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
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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 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.
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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.
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, Etc., to Agreement Not Requiring Consent of
Bondholders. The Issuer and the Trustee shall, without the consent of or notice
to the Bondholders, consent to any amendment, change or modification of the
Agreement which may be entered into pursuant to Section 2.10 hereof or as may be
required (i) by the provisions of the Agreement or this Indenture, (ii) for the
purpose of curing any ambiguity or formal defect or omission, (iii) in
connection with the Project facilities so as to identify the same more precisely
or substitute or add additional facilities, or (iv) in connection with any other
change therein which, in the judgment of the Trustee, is not to the prejudice of
the Trustee or the Bondholders.
SECTION 11.02. Amendments, Etc., to Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications as provided in
Section 11.01 hereof, neither the Issuer nor the Trustee shall consent to any
other amendment, change or modification of the Agreement or the terms of the
Notes without the giving of notice and the written approval or consent of the
holders of not less than 50% in aggregate principal amount of the Bonds at the
time outstanding given and procured as in this Section 11.02 provided. If at any
time the Issuer and the Company shall request the consent of the Trustee to any
such proposed amendment, change or modification of the Agreement or the terms of
the Notes, the Trustee shall, upon being satisfactorily indemnified with respect
to expenses, cause notice of such proposed amendment, change or modification to
be given in the same manner as provided by Section 10.02 hereof with respect to
supplemental indentures. Such notice shall briefly set forth the nature of such
proposed amendment, change or modification and shall state that copies of the
instrument embodying the same are on file with the Trustee for inspection by all
Bondholders.
SECTION 11.03. Trustee Authorized to Join in Amendments;
Reliance on Counsel. The Trustee is authorized to join with the
Issuer in the execution and delivery of any amendment permitted
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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.
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
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and shall be deemed given when delivered or mailed by registered or certified
mail, postage prepaid, or sent by telegram, addressed as follows: if to the
Issuer, at 1306 Walter Sillers Building, 550 High Street, Jackson, Mississippi
39205, Attention: Executive Director; if to the Trustee, at 2510 14th Street, 1
Hancock Plaza, Gulfport, Mississippi 39501, Attention: 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 Mississippi.
SECTION 12.09. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of
this Indenture.
SECTION 12.10. No Liability of Officers. No covenant or
agreement contained in the Bonds or this Indenture shall be deemed to be a
covenant or agreement of any member, officer, agent or employee of the Issuer
in his individual capacity, and neither the members of the Board nor any
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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, the Mississippi Business Finance Corporation has
caused these presents to be signed in its name and behalf by its Executive
Director, and its official seal to be hereunto affixed and attested by its
Secretary, and to evidence its acceptance of the trusts hereby created Hancock
Bank, 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.
MISSISSIPPI BUSINESS FINANCE
CORPORATION
[SEAL]
By:________________________
Attest: William T. Barry
Executive Director
_________________________
James Vernon Smith, Sr.
Secretary
HANCOCK BANK
[SEAL]
By:______________________
Attest: Charles H. Gibbons
Vice President
_______________________
Joyce B. Leonard
Trust Officer
<PAGE>
STATE OF FLORIDA
COUNTY OF ESCAMBIA
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 29th day of February, 1996, within my
jurisdiction, the within named William T. Barry and James Vernon Smith, Sr., who
acknowledged that they are the Executive Director and Secretary of the
Mississippi Business Finance Corporation, and that in said representative
capacities they executed the above and foregoing instrument, after first having
been duly authorized so to do.
_______________________
Notary Public
My Commission Expires:
_______________________________
STATE OF MISSISSIPPI
COUNTY OF HARRISON
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 26th day of February, 1996, within my
jurisdiction, the within named Charles H. Gibbons and Joyce B. Leonard, who
acknowledged that they are a Vice President and Trust Officer, respectively, of
Hancock Bank, a Mississippi state chartered bank, and that for and on behalf of
the said bank and as its act and deed they executed the above and foregoing
instrument, after first having been duly authorized by said bank so to do.
_______________________
Notary Public
My Commission Expires:
_____________________________
<PAGE>
Exhibit D
March 12, 1996
Re: Statement on Form U-1 of
Gulf Power Company
(herein called the "Company")
File No. 70-8229
Securities and Exchange Commission
Washington, DC 20549
Gentlemen:
We have read the statement on Form U-1, as amended, referred to above and
are furnishing this opinion with respect to the transactions described
particularly in Amendment No. 9 (Post-Effective No. 7) and Amendment No. 10
(Post-Effective No. 8) to such statement relating to the issuance of Revenue
Bonds (as defined therein).
We are of the opinion that:
(a) the Company is validly organized and duly existing as a
corporation under the laws of the State of Maine and is duly
authorized to do business as a foreign corporation in the States
of Florida, Georgia and Mississippi;
(b) the transactions have been consummated in accordance with such
statement on Form U-1, as amended;
(c) all state laws applicable to the transactions have been complied
with;
(d) the Collateral Bond and the Company's Notes evidencing its
obligations with respect to the Revenue Bonds are valid and
binding obligations of the Company in accordance with their terms;
and
(e) the consummation of such transactions did not violate the legal
rights of the holders of any securities issued by the Company or
any associate company thereof.
<PAGE>
Securities and Exchange Commission
March 12, 1996
Page 2
We hereby give our written consent to the use of this opinion in
connection with the above-mentioned statement on Form U-1, as amended,
and to the filing thereof with the Commission at the time of the filing
by the Company of its certificate of notification pursuant to Rule 24.
Very truly yours,
/s/ Beggs & Lane
Beggs & Lane
