CERTIFICATE OF NOTIFICATION
Filed by
GULF POWER COMPANY
Pursuant to order of the Securities and Exchange Commission dated June 30,
1997 in the matter of File No. 70-8949.
Gulf Power Company (the "Company") hereby certifies to said Commission,
pursuant to Rule 24, as follows:
1. A Loan Agreement dated as of July 1, 1997 was made and entered into by
and between the Company and Escambia County, Florida ("Escambia County"), and
all transactions relating thereto (including the issuance by the Company of its
promissory note dated July 1, 1997 in the principal amount of $37,000,000
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
order with respect thereto.
2. A Loan Agreement dated as of July 1, 1997 was made and entered into by
and between the Company and Jackson County, Florida ("Jackson County"), and all
transactions relating thereto (including the issuance by the Company of its
promissory note dated July 1, 1997 in the principal amount of $3,930,000
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
order with respect thereto.
3. Filed herewith are the following exhibits.
Exhibit A - Loan Agreement between Escambia County and the
Company, dated as of July 1, 1997.
Exhibit B - Loan Agreement between Jackson County and the
Company, dated as of July 1, 1997.
Exhibit C - Trust Indenture of Escambia County, dated as of
July 1, 1997.
Exhibit D - Trust Indenture of Jackson County, dated as of
July 1, 1997.
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Exhibit E - Subordinate Land Deed of Trust among the
Company, Ben H. Stone, as trustee, and Escambia
County, dated July 1, 1997.
Exhibit F - Subordinate Land Deed of Trust among the
Company, Ben H. Stone, as trustee, and Jackson
County, dated July 1, 1997.
Exhibit G - Opinion of Beggs & Lane dated July , 1997.
Dated: July 14, 1997 GULF POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit A
ESCAMBIA COUNTY, FLORIDA
and
GULF POWER COMPANY
LOAN AGREEMENT
Dated as of July 1, 1997
Relating to
$37,000,000
Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project)
Series 1997
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ii
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......................................................2
SECTION 2.1. Acquisition and Completion of the Project..................2
SECTION 2.2. Issuance of the Bonds......................................2
ARTICLE III: LOAN BY ISSUER; PROVISIONS FOR PAYMENT........................3
SECTION 3.1. Loan by Issuer.............................................3
SECTION 3.2. Delivery of Note by Company; Other Amounts Payable.........3
SECTION 3.3. Obligation of the Company Unconditional....................4
SECTION 3.4. Assignment and Pledge of Payments and Rights Under
the Note, the Deed of Trust and the Agreement..............4
ARTICLE IV: SPECIAL COVENANTS.............................................4
SECTION 4.1. Use of Project.............................................4
SECTION 4.2. Indemnity Against Claims...................................4
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted................5
SECTION 4.4. Annual Statement...........................................5
SECTION 4.5. Further Assurances and Corrective Instruments..............6
SECTION 4.6. Maintenance of Project by Company..........................6
SECTION 4.7. Redemption or Purchase of Bonds............................6
SECTION 4.8. Non-Arbitrage Covenant.....................................6
SECTION 4.9. No Issuer Liability........................................7
SECTION 4.10. Post Issuance Audits.......................................7
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES..................................8
SECTION 5.1. Events of Default..........................................8
SECTION 5.2. Remedies on Default........................................9
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.............10
SECTION 5.4. No Additional Waiver Implied by One Waiver................10
ARTICLE VI MISCELLANEOUS.................................................10
SECTION 6.1. Term of This Agreement....................................10
SECTION 6.2. Notices...................................................10
SECTION 6.3. Binding Effect............................................11
SECTION 6.4. Severability..............................................11
SECTION 6.5. Amendments................................................11
SECTION 6.6. Execution in Counterparts.................................11
SECTION 6.7. Applicable Law............................................11
SECTION 6.8. Captions..................................................11
SECTION 6.9. Other Financing...........................................11
<PAGE>
LOAN AGREEMENT dated as of July 1, 1997 between ESCAMBIA COUNTY,
FLORIDA (the "Issuer"), a "local agency" as defined in the Florida Industrial
Development Financing Act, being Part II of Chapter 159, Florida Statutes,
Sections 159.25 through 159.431 (the "Act"), and a political subdivision of the
State of Florida, and GULF POWER COMPANY, a corporation organized and existing
under the laws of the State of Maine and qualified and doing business as an
electric utility in the State of Florida (the "Company"), evidencing the
agreement of the parties hereto.
In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided that in the
performance of the agreements of the Issuer herein contained, any obligation it
may thereby incur for the payment of money shall not be a general debt,
liability or obligation of the Issuer, or of the State of Florida or any
political subdivision thereof but shall be payable solely out of the revenues
and proceeds derived from this Agreement and the Note (as hereinafter defined)
and the sale of the Bonds referred to herein):
ARTICLE I
DEFINITIONS
"Bondholder", "Bonds", "Business Day", "Government Obligations",
"Refunded Bonds", "Refunded Bonds Trustees", "Remarketing Agent" and "Trustee"
have the same meanings given and assigned to such words in Article I of the
Indenture (as hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and supplements
hereto.
"Deed of Trust" means the Subordinate Land Deed of Trust dated as of
July 1, 1997 between the Company, as grantor, and the Issuer, as beneficiary,
providing for the security conveyance of certain property of the Company
described therein.
"Event of Default" means any of the occurrences enumerated in Section 5.1
of this Agreement.
"Indenture" means the Trust Indenture dated as of July 1, 1997,
relating to Pollution Control Revenue Refunding Bonds (Gulf Power Company
Project), Series 1997, between the Issuer and First Union National Bank, as
Trustee, pursuant to which the Bonds are authorized to be issued, and including
any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the Company of the
proceeds (which shall be deemed to include the underwriting discounts, if any,
and original issue discount, if any) of the sale of the Bonds, exclusive of any
accrued interest paid by the initial purchasers of the Bonds upon the delivery
thereof.
"1982 Original Agreement" means the Loan Agreement dated as of August
1, 1982 between the Issuer and the Company, delivered in connection with the
issuance of the Issuer's $32,000,000 Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series 1982.
"1982 Plans" has the same meaning given and assigned to the word
"Plans" in Article I of the 1982 Original Agreement.
"1982 Project" has the same meaning given and assigned to the word
"Project" in Article I of the 1982 Original Agreement.
"1974 Original Agreement" means the Installment Sale Agreement dated as
of December 1, 1974 between the Issuer and the Company, delivered in connection
with the issuance of the Issuer's $5,000,000 Pollution Control Revenue Bonds
(Gulf Power Company Crist Steam Plant Project), Series A.
"1974 Plans" has the same meaning given and assigned to the word
"Plans" in Article I of the 1974 Original Agreement.
"1974 Project" has the same meaning given and assigned to the word
"Project" in Article I of the 1974 Original Agreement.
"Note" means the non-negotiable promissory note of the Company issued
pursuant to Section 3.2 hereof, in the form set forth in Exhibit A hereto.
"Plans" means the 1974 Plans and the 1982 Plans.
"Project" means the 1974 Project and the 1982 Project.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The Company
represents that it has caused the acquisition, construction, installation and
equipping of the Project to be completed substantially in accordance with the
Plans.
SECTION 2.2. Issuance of the Bonds. In order to provide funds for the
purpose set forth in Section 3.1 hereof, the Issuer agrees that it will issue
and deliver the Bonds to the purchasers thereof at a price of par and apply and
deposit the proceeds thereof in accordance with the terms of the Indenture. The
Indenture shall be satisfactory in form and substance to the County and the
Company and shall provide the manner in which, and the purposes for which,
proceeds of Bonds may be used and invested.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the Loan
to the Company in order to refund the Refunded Bonds. The Company hereby agrees
to cause the proceeds of the Bonds to be applied exclusively to such purpose and
to cause the redemption of the Refunded Bonds to be effected within 90 days
after the date of initial issuance of the Bonds. The Company agrees to pay to
each of the Refunded Bonds Trustees the amount in excess of the proceeds of the
Bonds needed to pay the redemption price of the Refunded Bonds.
SECTION 3.2. Delivery of Note by Company; Other Amounts Payable. In
order to evidence the Loan and the obligation of the Company to repay the same,
the Company shall execute and deliver the Note in a principal amount equal to
the aggregate principal amount of the Bonds and providing for payments which
correspond in time and amount with payments due with respect to the principal or
purchase price of, interest and premium, if any, on the Bonds, whether at
maturity, prior optional or mandatory redemption, or upon tender for purchase or
otherwise. The Note shall be dated the date of the initial authentication of,
and mature on the same maturity date as, the Bonds. If (i) on the date any
payments on the Bonds are due there are any available moneys on deposit with the
Trustee which are not being held for the payment of Bonds due and payable but
which have not been presented for payment, or (ii) on any date on which Bonds
are required to be purchased pursuant to the Bonds or Article III of the
Indenture, there are available moneys on deposit with the Trustee held for the
payment of the purchase price which are not being held for the payment of Bonds
which have not been presented for payment, then, in each case, such moneys shall
be credited against the payment then due under the Note, first in respect of
interest and then, to the extent of remaining moneys, in respect of principal.
The Company shall pay all reasonable costs and expenses incurred in
connection with the issuance of the Bonds and the execution, delivery and
performance of the Agreement, the Indenture and any other documents or
instruments related thereto or to the Bonds, to which the Issuer is a party or
by which it is bound, including, without limitation, the reasonable fees of the
Issuer's financial advisor and bond counsel.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee and any paying agents under the Indenture, such fees,
charges and reasonable expenses to be paid directly to the Trustee or paying
agents for their respective accounts as and when such fees, charges and
reasonable expenses become due and payable, (ii) any expenses in connection with
any redemption of the Bonds and (iii) all other amounts due under the terms
hereof to the Issuer.
SECTION 3.3. Obligation of the Company Unconditional. The obligation of
the Company to make payments as provided in the Note and to perform and observe
the other agreements on its part contained herein shall be absolute and
unconditional notwithstanding any change in the tax or other laws of the United
States of America or of the State of Florida or any political subdivision of
either thereof or any failure of the Issuer to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Subject in all cases to Section
4.2 hereof, nothing contained in this Section 3.3 shall be construed to release
the Issuer from the performance of any of the agreements on its part herein
contained; and, in the event the Issuer should fail to perform any such
agreement on its part, the Company may institute such action against the Issuer
as the Company may deem necessary to compel performance so long as such action
shall not violate the agreements on the part of the Company contained in the
preceding sentence, but in no event shall the Company be entitled to any
diminution of the amounts payable under the Note and as provided in Section 3.2
hereof.
SECTION 3.4. Assignment and Pledge of Payments and Rights Under the
Note, the Deed of Trust and the Agreement. The Issuer shall assign to the
Trustee as security under the Indenture all rights, title and interests of the
Issuer in and to (i) the Note and all payments thereunder, (ii) the Deed of
Trust and (iii) this Agreement and all moneys receivable hereunder (except for
payments under Sections 4.2 and 5.3 hereof). The Company assents to such
assignment and hereby agrees that, as to the Trustee, its obligations to make
such payments shall be absolute and shall not be subject to any defense or any
right of set-off, counterclaim or recoupment arising out of any breach by the
Issuer or the Trustee of any obligation to the Company, whether hereunder or
otherwise, or out of any indebtedness or liability at any time owing to the
Company by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer hereby acknowledges that it
shall have no rights to the use or possession of the Project. The Issuer hereby
further acknowledges that the Project will not constitute any part of the
security for the Bonds.
SECTION 4.2. Indemnity Against Claims. (a) Notwithstanding anything to
the contrary contained herein or in any of the Bonds, the Indenture or in any
other instrument or document executed by or on behalf of the Issuer in
connection herewith, (i) the Issuer shall have no obligation to take action
under this Agreement, the Indenture, the Bonds or such other instruments or
documents unless the Issuer is reasonably requested in writing by an appropriate
person to take such action and is provided with indemnity and assurances
reasonably satisfactory to it of payment of or reimbursement for any expenses
(including attorneys' fees) in such action, and (ii) any judgment rendered
against the Issuer for breach of its obligations under this Agreement, the
Indenture, the Bonds or such other instruments or documents shall be payable
solely from the revenues derived from the Project by the Issuer under this
Agreement, the Note and the Indenture, and no personal liability or charge
payable directly or indirectly from the general funds of the Issuer shall arise
therefrom. The provisions of this Section shall survive the termination of this
Agreement.
(b) In acting under this Agreement, the Indenture, the Bonds or such
other instruments or documents, or in refraining from taking such action, the
Issuer may conclusively rely on the advice of its counsel.
(c) The Company will pay and discharge and will indemnify and hold
harmless the Issuer from (i) any lien or charge upon payments by the Company to
the Issuer under the Note or hereunder, (ii) any taxes, assessments, impositions
and other charges upon payments by the Company to the Issuer under the Note or
hereunder and (iii) any and all liability, damages, costs and expenses arising
out of or resulting from the transactions contemplated by this Agreement and the
Indenture, including the reasonable fees and expenses of counsel. If any such
lien or charge is sought to be imposed upon payments, or any such taxes,
assessments, impositions or other charges are sought to be imposed, or any such
liability, damages, costs and expenses are sought to be imposed, the Issuer will
give prompt notice to the Company, and the Company shall have the sole right and
duty to assume, and will assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees that during the
term of this Agreement it will maintain its corporate existence and
qualification to do business in Florida, will not dissolve or otherwise dispose
of all or substantially all of its assets and will not consolidate with or merge
into another corporation or permit one or more other corporations to consolidate
with or merge into it; provided, that the Company may, without violating the
agreements contained in this Section 4.3, consolidate with or merge into another
domestic corporation (i.e., a corporation incorporated and existing under the
laws of one of the states of the United States of America or under the laws of
the United States of America) or permit one or more other corporations to
consolidate with or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an entirety and
thereafter dissolve, provided that, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may be, the
surviving, resulting or transferee corporation assumes, accepts and agrees in
writing to pay and perform all of the obligations of the Company herein and
under the Note and is a Florida corporation or is qualified to do business in
Florida as a foreign corporation and that such consolidation or merger does not
result in the loss of the exclusion from gross income for federal income tax
purposes of interest on the outstanding Bonds.
SECTION 4.4. Annual Statement. The Company agrees to have an annual
audit made by its regular independent public accountants and within 180 days
after the close of each fiscal year to furnish the Trustee and any Bondholder
who may so request a balance sheet and statement of income and surplus showing
the financial condition of the Company and its consolidated subsidiaries, if
any, at the close of such fiscal year and the results of operations of the
Company and its consolidated subsidiaries, if any, for such fiscal year,
accompanied by a certificate or opinion of said accountants. The requirements of
this Section 4.4 may be satisfied by the submission to the Trustee and each
Bondholder who may request such information of the Company's annual report to
its shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Agreement.
SECTION 4.6. Maintenance of Project by Company. The Company agrees that
during the term of this Agreement it will pay all costs of operating,
maintaining and repairing the Project; provided, however, that the Company shall
not be under any obligation to renew, repair or replace any inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary portion of the
Project.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture for the
redemption or purchase (other than a purchase pursuant to tenders as provided in
the form of Bonds or in lieu of redemption as provided in Section 3.07 of the
Indenture) of Bonds upon receipt, not less than ten days prior to the day on
which the Trustee is required to give notice (if any) thereof pursuant to the
Indenture, by the Issuer and the Trustee from the Company of a written notice
specifying:
(a) the principal amount of Bonds to be redeemed or purchased;
(b) the date of such redemption or purchase; and
(c) in the case of a redemption of Bonds, directions to mail a notice
of redemption.
In the case of a purchase of Bonds, the written notice to the Trustee shall, if
available moneys on deposit with the Trustee are insufficient to purchase the
principal amount of Bonds specified in (a) above, be accompanied by a deposit
with the Trustee of cash or Government Obligations sufficient, together with
other available moneys on deposit with the Trustee, to make the directed
purchase of Bonds.
SECTION 4.8. Non-Arbitrage Covenant. The Company covenants that it
shall take no action, nor shall the Company direct the taking of any action or
the making of any investment or use of the proceeds of the Bonds or any other
moneys, which would cause the Bonds to be treated as "arbitrage bonds" within
the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and
the proposed, temporary or final regulations thereunder as such may be
applicable or proposed to be applicable to the Bonds at the time of such action,
investment or use.
The Issuer covenants that it shall not knowingly take any action which
would cause the Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Internal Revenue Code of 1986, as amended, and the proposed,
temporary or final regulations thereunder as such may be applicable to the Bonds
or the proceeds derived from the sale of the Bonds or any other moneys;
provided, however, that no action taken by the Issuer pursuant to and in
accordance with the terms of this Agreement or the Indenture shall give rise in
any manner whatsoever to any claim against or liability of the Issuer under this
Agreement; and provided further, that any such claims or liabilities shall in
all events be subject to the indemnification provisions of Section 4.2.
Without limiting the generality of the foregoing, the Company covenants
and agrees to comply with the requirements of Section 148(f) of the Internal
Revenue Code of 1986, as amended, and any proposed, temporary or final
regulations thereunder as may be applicable to the Bonds or the proceeds derived
from the sale of the Bonds or any other moneys.
SECTION 4.9. No Issuer Liability. Notwithstanding the fact that is the
intention of the parties hereto that the Issuer shall not incur any loss,
expense or pecuniary liability by reason of the terms of this Agreement or the
undertakings required of the Issuer hereunder, by reason of the issuance of the
performance of any act requested of the Issuer by the Company, including all
claims, liabilities or losses arising in connection with the violation of any
statutes or regulation pertaining to the foregoing, if the Issuer should incur
any such loss, expense or pecuniary liability, then in such event the Company
shall indemnify and hold the Issuer harmless against all claims, demands or
causes of action whatsoever, by or on behalf of any person, firm or corporation
or other legal entity arising out of the same or out of any offering statement
or lack of offering statement or disclosure in connection with the offering,
sale or remarketing of the Bonds or out of any determination of taxability of
the Bonds or interest thereon and all costs and expenses incurred in connection
with any such claim or in connection with any action or proceeding brought
thereon, and upon notice from the Issuer, the Company shall defend the Issuer in
any such action or proceeding. All references to the Issuer in this Section
shall be deemed to include its Board of County Commissioners, Commission
Members, officers, employees and agents.
Notwithstanding anything to the contrary contained herein or in any of
the Bonds, or the Indenture or in any other instrument or document executed by
or on behalf of the Issuer in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement or obligation of any present or future
member, officer, employee or agent of the Issuer, or of any incorporator,
member, director, trustee, officer, employee or agent of any successor to the
Issuer, in any such person's individual capacity, and no such person, in his
individual capacity, shall be liable personally for any breach or non-observance
of or for any failure to perform, fulfill or comply with any such stipulations,
covenants, agreements or obligations, nor shall any recourse be had for the
payment of the principal of, premium, if any, or interest on any of the Bonds or
for any claim based thereon or on any such stipulation, covenant, agreement or
obligation, against any such person, in his individual capacity, either directly
or through the Issuer or any successor to the Issuer, under any rule of law or
equity, statute or constitution or by the enforcement of any assessment or
penalty or otherwise, and all such liability of any such person, in his
individual capacity, is hereby expressly waived and released. The provisions of
this Section shall survive the termination of this Agreement.
SECTION 4.10 Post Issuance Audits. The Company agrees to provide such
records regarding the Project and the use, investment and application of
proceeds of the Bonds as may reasonably be requested by the County to enable the
County to determine that the Company has complied with the requirements of this
Agreement and the Indenture subsequent to the issuance of the Bonds. Such
compliance shall include, but not be limited to, the proper use of the Bonds
proceeds for the intended purposes of the Indenture and this Agreement and
compliance with any federal arbitrage rebate requirements. The Company agrees to
advance all funds necessary to enable the County to engage and pay for such
auditors, accountants, financial advisors, counsel or other professionals for
purposes of reasonably determining such compliance.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall be an "Event of
Default" under this Agreement:
(a) Failure by the Company to pay when due the amounts
required to be paid pursuant to the Note which failure, in the case of
such amounts in respect of interest on any Bond, continues for five
days, or the failure by the Company to pay within 30 days of the date
due any 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 90 days after written notice,
specifying such failure and requesting that it be remedied, is given to
the Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period prior to
its expiration; provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, the Issuer and the
Trustee will not unreasonably withhold their consent to an extension of
such period if corrective action is instituted by the Company within
the applicable period and diligently pursued until the default is
corrected.
(c) The dissolution or liquidation of the Company, except as
permitted by Section 4.3 hereof, or the commencement by the Company of
any case or proceeding seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other similar law
of the United States or any state, or adjudication of the Company as
bankrupt, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any proceeding
for its reorganization instituted under the provisions of Title 11 of
the United States Code, as amended, or under any similar statutory
provision which may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the limitation that,
if by reason of force majeure the Company is unable in whole or in part to carry
out its agreements herein contained other than those set forth in Sections 3.2,
4.3 and 4.8 hereof, an Event of Default shall not be deemed to have occurred
during the continuance of such inability. The term "force majeure" as used
herein shall mean the following: acts of God; strikes; lockouts or other
industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States or of the State of Florida or any of their
departments, agencies or officials or of any civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; tornadoes; storms; floods; washouts; droughts; arrests; restraints
of government and people; civil disturbances; explosions; breakage or accident
to machinery, transmission lines, pipes or canals; partial or entire failure of
utilities; or any other cause or event not reasonably within the control of the
Company. The Company agrees, however, to remedy to the extent practicable with
all reasonable dispatch the effects of any force majeure preventing the Company
from carrying out its agreements; provided that the settlement of strikes,
lockouts and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required to make
settlement of strikes, lockouts and other industrial disturbances by acceding to
the demands of the opposing party or parties when such course is in the judgment
of the Company unfavorable to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of Default shall
have occurred and be continuing, the Issuer may, in addition to any other remedy
now or hereafter existing at law, in equity or by statute, take either or both
of the following remedial steps:
(a) By written notice to the Company, the Issuer may
accelerate and declare all amounts payable pursuant to the Note to be
immediately due and payable, whereupon the same shall become
immediately due and payable;
(b) The Issuer may take whatever action at law or in equity
may appear necessary or desirable to collect the amounts referred to in
(a) above then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section 5.2 shall be
deposited with the Trustee and applied in accordance with the provisions of the
Indenture or, if the Bonds have been fully paid (or provision for payment
thereof has been made in accordance with the provisions of the Indenture) and
the fees and expenses of the Trustee and the paying agents and all other amounts
required to be paid under the Indenture shall have been paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should breach any of the provisions of the Note or this
Agreement and the Issuer should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay to the Issuer
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in the Note or in this Agreement should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. Except as otherwise expressly
provided herein, this Agreement shall remain in full force and effect from the
date hereof until such time as all of the outstanding Bonds shall have been
fully paid or provision made therefor in accordance with the provisions of the
Indenture, whichever shall first occur, and the fees and expenses of the Trustee
and any paying agents and all other amounts payable by the Company under this
Agreement and the Note shall have been paid.
SECTION 6.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid, addressed as
follows: if to the Issuer, to the Chairman of the Board of Commissioners, 223
Palafox Place, Pensacola, Florida 32597; if to the Company, at 500 Bayfront
Parkway, Pensacola, Florida 32501, Attention: Treasurer, with copies to Southern
Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303,
Attention: Corporate Finance Department; and if to the Trustee, at 225 Water
Street, 3rd Floor, Jacksonville, Florida 32202, Attention: Corporate Trust
Department. A duplicate copy of each notice, certificate or other communication
given hereunder by either the Issuer or the Company to the other shall also be
given to the Trustee. The Issuer, the Company and the Trustee may, by notice
given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 6.5. Amendments. This Agreement may not be effectively
terminated except in accordance with the provisions hereof and may not be
effectively amended except by a written agreement in accordance with Article XI
of the Indenture and signed by the parties hereto.
SECTION 6.6. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 6.7. Applicable Law. This Agreement and the Note shall be governed
by and construed in accordance with the laws of the State of Florida.
SECTION 6.8. Captions. The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement.
SECTION 6.9. Other Financing. Notwithstanding anything in this
Agreement to the contrary, the Issuer and the Company may hereafter enter into
agreements to provide for the financing or refinancing of costs of the Project
or any portion thereof.
<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.
ESCAMBIA COUNTY, FLORIDA
[SEAL] By:
Chairman of the Escambia County
Board of County Commissioners
ATTEST:
Clerk of the Escambia County
Board of County Commissioners
GULF POWER COMPANY
[SEAL] By:
President and Chief Executive Officer
ATTEST:
Assistant Secretary
<PAGE>
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
GULF POWER COMPANY ("Gulf"), a corporation organized and existing under
the laws of the State of Maine, acknowledges itself indebted and for value
received hereby promises to pay to the order of Escambia County, Florida (the
"County"), and its successors and assigns, the principal sum of THIRTY-SEVEN
MILLION DOLLARS ($37,000,000) together with interest on the unpaid principal
balance thereof from the date hereof until Gulf's obligations with respect to
the payment of such sum shall be discharged at the rate or rates borne by the
Bonds referred to below. As additional interest hereon there shall be payable,
and Gulf promises to pay when due, amounts which shall equal the premium, if
any, due on such Bonds in connection with the redemption thereof. Gulf further
promises to pay the purchase price of such Bonds as hereinbelow provided.
This Note is issued to evidence the Loan (as defined in the Agreement
hereinafter referred to) of the County to Gulf and the obligation of Gulf to
repay the same and shall be governed by and be payable in accordance with the
terms and conditions of a loan agreement (the "Agreement") between the County
and Gulf dated as of July 1, 1997, pursuant to which the County has loaned to
Gulf the proceeds of the sale of the County's $37,000,000 of Pollution Control
Revenue Refunding Bonds (Gulf Power Company Project), Series 1997 (the "Bonds").
This Note (together with the Agreement) has been assigned to First Union
National Bank (the "Trustee"), acting pursuant to a trust indenture dated as of
July 1, 1997 (the "Indenture") between the County and the Trustee, and may not
be assigned by the Trustee except to a successor Trustee pursuant to the terms
of the Indenture. Such assignment is made as security for the Bonds. The Bonds
are dated and bear interest in accordance with the provisions of the Indenture,
and mature on July 1, 2022. The Bonds are subject to redemption or prior
purchase prior to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon are to be
made by paying to the Trustee, as assignee of the County, in funds which will be
immediately available on the day payment is due, amounts which, and at or before
times which, shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in whatever manner
the same shall become due, whether at stated maturity, upon redemption or
declaration or otherwise, and the purchase price of Bonds required to be
purchased under the Indenture. If (i) on the date any payments on the Bonds are
due there are any available moneys on deposit with the Trustee which are not
being held for the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are required to be
purchased pursuant to the Bonds or Article III of the Indenture, there are
available moneys on deposit with the Trustee held for the payment of the
purchase price which are not being held for the payment of Bonds which have not
been presented for payment, then, in each case, such moneys shall be credited
against the payment then due hereunder, first in respect of interest and then,
to the extent of remaining moneys, in respect of principal. Upon the occurrence
of an Event of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable as provided in
the Agreement.
Neither the officers of Gulf nor any persons executing this Note shall
be liable personally or shall be subject to any personal liability or
accountability by reason of the issuance hereof.
This Note is secured by that certain Deed of Trust referred to in the
Agreement.
<PAGE>
IN WITNESS WHEREOF, Gulf Power Company has caused this Note to be
executed in its corporate name and on its behalf by its President, its Treasurer
or a Vice President by his manual signature, and its corporate seal to be
impressed hereon and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
GULF POWER COMPANY
By:
Attest:
<PAGE>
ASSIGNMENT
Pay to the order of First Union National Bank, as assignee of Escambia
County, Florida under the Trust Indenture, dated as of July 1, 1997, between
Escambia County, Florida and First Union National Bank, as Trustee, securing the
payment of Escambia County, Florida Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series 1997, in the original principal amount of
$37,000,000.
ESCAMBIA COUNTY, FLORIDA
By:
Exhbit B
JACKSON COUNTY, FLORIDA
and
GULF POWER COMPANY
LOAN AGREEMENT
Dated as of July 1, 1997
Relating to
$3,930,000
Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project)
Series 1997
<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....................2
SECTION 2.1. Acquisition and Completion of the Project.................2
SECTION 2.2. Issuance of the Bonds.....................................2
ARTICLE III: LOAN BY ISSUER; PROVISIONS FOR PAYMENT.......................2
SECTION 3.1. Loan by Issuer............................................2
SECTION 3.2. Delivery of Note by Company; Other Amounts Payable........2
SECTION 3.3. Obligation of the Company Unconditional...................3
SECTION 3.4. Assignment and Pledge of Payments and Rights Under
the Note, the Deed of Trust and the Agreement.............3
ARTICLE IV: SPECIAL COVENANTS............................................4
SECTION 4.1. Use of Project............................................4
SECTION 4.2. Indemnity Against Claims..................................4
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted...............5
SECTION 4.4. Annual Statement..........................................5
SECTION 4.5. Further Assurances and Corrective Instruments.............5
SECTION 4.6. Maintenance of Project by Company.........................5
SECTION 4.7. Redemption or Purchase of Bonds...........................6
SECTION 4.8. Non-Arbitrage Covenant....................................6
SECTION 4.9. No Issuer Liability.......................................6
SECTION 4.10. Post Issuance Audits......................................7
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES.................................8
SECTION 5.1. Events of Default.........................................8
SECTION 5.2. Remedies on Default.......................................9
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.............9
SECTION 5.4. No Additional Waiver Implied by One Waiver................9
ARTICLE VI MISCELLANEOUS................................................10
SECTION 6.1. Term of This Agreement...................................10
SECTION 6.2. Notices..................................................10
SECTION 6.3. Binding Effect...........................................10
SECTION 6.4. Severability.............................................10
SECTION 6.5. Amendments...............................................10
SECTION 6.6. Execution in Counterparts................................10
SECTION 6.7. Applicable Law...........................................10
SECTION 6.8. Captions.................................................11
SECTION 6.9. Other Financing..........................................11
<PAGE>
LOAN AGREEMENT dated as of July 1, 1997 between JACKSON COUNTY, FLORIDA
(the "Issuer"), a "local agency" as defined in the Florida Industrial
Development Financing Act, being Part II of Chapter 159, Florida Statutes,
Sections 159.25 through 159.431 (the "Act"), and a political subdivision of the
State of Florida, and GULF POWER COMPANY, a corporation organized and existing
under the laws of the State of Maine and qualified and doing business as an
electric utility in the State of Florida (the "Company"), evidencing the
agreement of the parties hereto.
In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided that in the
performance of the agreements of the Issuer herein contained, any obligation it
may thereby incur for the payment of money shall not be a general debt,
liability or obligation of the Issuer, or of the State of Florida or any
political subdivision thereof but shall be payable solely out of the revenues
and proceeds derived from this Agreement and the Note (as hereinafter defined)
and the sale of the Bonds referred to herein):
ARTICLE I
DEFINITIONS
"Bondholder", "Bonds", "Business Day", "Government Obligations",
"Refunded Bonds", "Refunded Bonds Trustee", "Remarketing Agent" and "Trustee"
have the same meanings given and assigned to such words in Article I of the
Indenture (as hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and supplements
hereto.
"Deed of Trust" means the Subordinate Land Deed of Trust dated as of
July 1, 1997 between the Company, as grantor, and the Issuer, as beneficiary,
providing for the security conveyance of certain property of the Company
described therein.
"Event of Default" means any of the occurrences enumerated in Section 5.1
of this Agreement.
"Indenture" means the Trust Indenture dated as of July 1, 1997,
relating to Pollution Control Revenue Refunding Bonds (Gulf Power Company
Project), Series 1997, between the Issuer and First Union National Bank, as
Trustee, pursuant to which the Bonds are authorized to be issued, and including
any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the Company of the
proceeds (which shall be deemed to include the underwriting discounts, if any,
and original issue discount, if any) of the sale of the Bonds, exclusive of any
accrued interest paid by the initial purchasers of the Bonds upon the delivery
thereof.
"Note" means the non-negotiable promissory note of the Company issued
pursuant to Section 3.2 hereof, in the form set forth in Exhibit A hereto.
"Original Agreement" means the Installment Sale Agreement dated as of
December 1, 1974 between the Issuer and the Company, delivered in connection
with the issuance of the Issuer's $3,930,000 Pollution Control Revenue Bonds
(Gulf Power Company Scholz Steam Plant Project), Series A.
"Plans" and "Project" have the same meanings given and assigned to such
words in Article I of the Original Agreement.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The Company
represents that it has caused the acquisition, construction, installation and
equipping of the Project to be completed substantially in accordance with the
Plans.
SECTION 2.2. Issuance of the Bonds. In order to provide funds for the
purpose set forth in Section 3.1 hereof, the Issuer agrees that it will issue
and deliver the Bonds to the purchasers thereof at a price of par and apply and
deposit the proceeds thereof in accordance with the terms of the Indenture. The
Indenture shall be satisfactory in form and substance to the County and the
Company and shall provide the manner in which, and the purposes for which,
proceeds of Bonds may be used and invested.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the Loan
to the Company in order to refund the Refunded Bonds. The Company hereby agrees
to cause the proceeds of the Bonds to be applied exclusively to such purpose and
to cause the redemption of the Refunded Bonds to be effected within 90 days
after the date of initial issuance of the Bonds. The Company agrees to pay to
the Refunded Bonds Trustee the amount in excess of the proceeds of the Bonds
needed to pay the redemption price of the Refunded Bonds.
SECTION 3.2. Delivery of Note by Company; Other Amounts Payable. In
order to evidence the Loan and the obligation of the Company to repay the same,
the Company shall execute and deliver the Note in a principal amount equal to
the aggregate principal amount of the Bonds and providing for payments which
correspond in time and amount with payments due with respect to the principal or
purchase price of, interest and premium, if any, on the Bonds, whether at
maturity, prior optional or mandatory redemption, or upon tender for purchase or
otherwise. The Note shall be dated the date of the initial authentication of,
and mature on the same maturity date as, the Bonds. If (i) on the date any
payments on the Bonds are due there are any available moneys on deposit with the
Trustee which are not being held for the payment of Bonds due and payable but
which have not been presented for payment, or (ii) on any date on which Bonds
are required to be purchased pursuant to the Bonds or Article III of the
Indenture, there are available moneys on deposit with the Trustee held for the
payment of the purchase price which are not being held for the payment of Bonds
which have not been presented for payment, then, in each case, such moneys shall
be credited against the payment then due under the Note, first in respect of
interest and then, to the extent of remaining moneys, in respect of principal.
The Company shall pay all reasonable costs and expenses incurred in
connection with the issuance of the Bonds and the execution, delivery and
performance of the Agreement, the Indenture and any other documents or
instruments related thereto or to the Bonds, to which the Issuer is a party or
by which it is bound, including, without limitation, the reasonable fees of the
Issuer's financial advisor and bond counsel.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee and any paying agents under the Indenture, such fees,
charges and reasonable expenses to be paid directly to the Trustee or paying
agents for their respective accounts as and when such fees, charges and
reasonable expenses become due and payable, (ii) any expenses in connection with
any redemption of the Bonds and (iii) all other amounts due under the terms
hereof to the Issuer.
SECTION 3.3. Obligation of the Company Unconditional. The obligation of
the Company to make payments as provided in the Note and to perform and observe
the other agreements on its part contained herein shall be absolute and
unconditional notwithstanding any change in the tax or other laws of the United
States of America or of the State of Florida or any political subdivision of
either thereof or any failure of the Issuer to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Subject in all cases to Section
4.2 hereof, nothing contained in this Section 3.3 shall be construed to release
the Issuer from the performance of any of the agreements on its part herein
contained; and, in the event the Issuer should fail to perform any such
agreement on its part, the Company may institute such action against the Issuer
as the Company may deem necessary to compel performance so long as such action
shall not violate the agreements on the part of the Company contained in the
preceding sentence, but in no event shall the Company be entitled to any
diminution of the amounts payable under the Note and as provided in Section 3.2
hereof.
SECTION 3.4. Assignment and Pledge of Payments and Rights Under the
Note, the Deed of Trust and the Agreement. The Issuer shall assign to the
Trustee as security under the Indenture all rights, title and interests of the
Issuer in and to (i) the Note and all payments thereunder, (ii) the Deed of
Trust and (iii) this Agreement and all moneys receivable hereunder (except for
payments under Sections 4.2 and 5.3 hereof). The Company assents to such
assignment and hereby agrees that, as to the Trustee, its obligations to make
such payments shall be absolute and shall not be subject to any defense or any
right of set-off, counterclaim or recoupment arising out of any breach by the
Issuer or the Trustee of any obligation to the Company, whether hereunder or
otherwise, or out of any indebtedness or liability at any time owing to the
Company by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer hereby acknowledges that it
shall have no rights to the use or possession of the Project. The Issuer hereby
further acknowledges that the Project will not constitute any part of the
security for the Bonds.
SECTION 4.2. Indemnity Against Claims. (a) Notwithstanding anything to
the contrary contained herein or in any of the Bonds, the Indenture or in any
other instrument or document executed by or on behalf of the Issuer in
connection herewith, (i) the Issuer shall have no obligation to take action
under this Agreement, the Indenture, the Bonds or such other instruments or
documents unless the Issuer is reasonably requested in writing by an appropriate
person to take such action and is provided with indemnity and assurances
reasonably satisfactory to it of payment of or reimbursement for any expenses
(including attorneys' fees) in such action, and (ii) any judgment rendered
against the Issuer for breach of its obligations under this Agreement, the
Indenture, the Bonds or such other instruments or documents shall be payable
solely from the revenues derived from the Project by the Issuer under this
Agreement, the Note and the Indenture, and no personal liability or charge
payable directly or indirectly from the general funds of the Issuer shall arise
therefrom. The provisions of this Section shall survive the termination of this
Agreement.
(b) In acting under this Agreement, the Indenture, the Bonds or such
other instruments or documents, or in refraining from taking such action, the
Issuer may conclusively rely on the advice of its counsel.
(c) The Company will pay and discharge and will indemnify and hold
harmless the Issuer from (i) any lien or charge upon payments by the Company to
the Issuer under the Note or hereunder, (ii) any taxes, assessments, impositions
and other charges upon payments by the Company to the Issuer under the Note or
hereunder and (iii) any and all liability, damages, costs and expenses arising
out of or resulting from the transactions contemplated by this Agreement and the
Indenture, including the reasonable fees and expenses of counsel. If any such
lien or charge is sought to be imposed upon payments, or any such taxes,
assessments, impositions or other charges are sought to be imposed, or any such
liability, damages, costs and expenses are sought to be imposed, the Issuer will
give prompt notice to the Company, and the Company shall have the sole right and
duty to assume, and will assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees that during the
term of this Agreement it will maintain its corporate existence and
qualification to do business in Florida, will not dissolve or otherwise dispose
of all or substantially all of its assets and will not consolidate with or merge
into another corporation or permit one or more other corporations to consolidate
with or merge into it; provided, that the Company may, without violating the
agreements contained in this Section 4.3, consolidate with or merge into another
domestic corporation (i.e., a corporation incorporated and existing under the
laws of one of the states of the United States of America or under the laws of
the United States of America) or permit one or more other corporations to
consolidate with or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an entirety and
thereafter dissolve, provided that, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may be, the
surviving, resulting or transferee corporation assumes, accepts and agrees in
writing to pay and perform all of the obligations of the Company herein and
under the Note and is a Florida corporation or is qualified to do business in
Florida as a foreign corporation and that such consolidation or merger does not
result in the loss of the exclusion from gross income for federal income tax
purposes of interest on the outstanding Bonds.
SECTION 4.4. Annual Statement. The Company agrees to have an annual
audit made by its regular independent public accountants and within 180 days
after the close of each fiscal year to furnish the Trustee and any Bondholder
who may so request a balance sheet and statement of income and surplus showing
the financial condition of the Company and its consolidated subsidiaries, if
any, at the close of such fiscal year and the results of operations of the
Company and its consolidated subsidiaries, if any, for such fiscal year,
accompanied by a certificate or opinion of said accountants. The requirements of
this Section 4.4 may be satisfied by the submission to the Trustee and each
Bondholder who may request such information of the Company's annual report to
its shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Agreement.
SECTION 4.6. Maintenance of Project by Company. The Company agrees that
during the term of this Agreement it will pay all costs of operating,
maintaining and repairing the Project; provided, however, that the Company shall
not be under any obligation to renew, repair or replace any inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary portion of the
Project.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture for the
redemption or purchase (other than a purchase pursuant to tenders as provided in
the form of Bonds or in lieu of redemption as provided in Section 3.07 of the
Indenture) of Bonds upon receipt, not less than ten days prior to the day on
which the Trustee is required to give notice (if any) thereof pursuant to the
Indenture, by the Issuer and the Trustee from the Company of a written notice
specifying:
(a) the principal amount of Bonds to be redeemed or purchased;
(b) the date of such redemption or purchase; and
(c) in the case of a redemption of Bonds, directions to mail a notice
of redemption.
In the case of a purchase of Bonds, the written notice to the Trustee shall, if
available moneys on deposit with the Trustee are insufficient to purchase the
principal amount of Bonds specified in (a) above, be accompanied by a deposit
with the Trustee of cash or Government Obligations sufficient, together with
other available moneys on deposit with the Trustee, to make the directed
purchase of Bonds.
SECTION 4.8. Non-Arbitrage Covenant. The Company covenants that it
shall take no action, nor shall the Company direct the taking of any action or
the making of any investment or use of the proceeds of the Bonds or any other
moneys, which would cause the Bonds to be treated as "arbitrage bonds" within
the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and
the proposed, temporary or final regulations thereunder as such may be
applicable or proposed to be applicable to the Bonds at the time of such action,
investment or use.
The Issuer covenants that it shall not knowingly take any action which
would cause the Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Internal Revenue Code of 1986, as amended, and the proposed,
temporary or final regulations thereunder as such may be applicable to the Bonds
or the proceeds derived from the sale of the Bonds or any other moneys;
provided, however, that no action taken by the Issuer pursuant to and in
accordance with the terms of this Agreement or the Indenture shall give rise in
any manner whatsoever to any claim against or liability of the Issuer under this
Agreement; and provided further, that any such claims or liabilities shall in
all events be subject to the indemnification provisions of Section 4.2.
Without limiting the generality of the foregoing, the Company covenants
and agrees to comply with the requirements of Section 148(f) of the Internal
Revenue Code of 1986, as amended, and any proposed, temporary or final
regulations thereunder as may be applicable to the Bonds or the proceeds derived
from the sale of the Bonds or any other moneys.
SECTION 4.9. No Issuer Liability. Notwithstanding the fact that is the
intention of the parties hereto that the Issuer shall not incur any loss,
expense or pecuniary liability by reason of the terms of this Agreement or the
undertakings required of the Issuer hereunder, by reason of the issuance of the
performance of any act requested of the Issuer by the Company, including all
claims, liabilities or losses arising in connection with the violation of any
statutes or regulation pertaining to the foregoing, if the Issuer should incur
any such loss, expense or pecuniary liability, then in such event the Company
shall indemnify and hold the Issuer harmless against all claims, demands or
causes of action whatsoever, by or on behalf of any person, firm or corporation
or other legal entity arising out of the same or out of any offering statement
or lack of offering statement or disclosure in connection with the offering,
sale or remarketing of the Bonds or out of any determination of taxability of
the Bonds or interest thereon and all costs and expenses incurred in connection
with any such claim or in connection with any action or proceeding brought
thereon, and upon notice from the Issuer, the Company shall defend the Issuer in
any such action or proceeding. All references to the Issuer in this Section
shall be deemed to include its Board of County Commissioners, Commission
Members, officers, employees and agents.
Notwithstanding anything to the contrary contained herein or in any of
the Bonds, or the Indenture or in any other instrument or document executed by
or on behalf of the Issuer in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement or obligation of any present or future
member, officer, employee or agent of the Issuer, or of any incorporator,
member, director, trustee, officer, employee or agent of any successor to the
Issuer, in any such person's individual capacity, and no such person, in his
individual capacity, shall be liable personally for any breach or non-observance
of or for any failure to perform, fulfill or comply with any such stipulations,
covenants, agreements or obligations, nor shall any recourse be had for the
payment of the principal of, premium, if any, or interest on any of the Bonds or
for any claim based thereon or on any such stipulation, covenant, agreement or
obligation, against any such person, in his individual capacity, either directly
or through the Issuer or any successor to the Issuer, under any rule of law or
equity, statute or constitution or by the enforcement of any assessment or
penalty or otherwise, and all such liability of any such person, in his
individual capacity, is hereby expressly waived and released. The provisions of
this Section shall survive the termination of this Agreement.
SECTION 4.10 Post Issuance Audits. The Company agrees to provide such
records regarding the Project and the use, investment and application of
proceeds of the Bonds as may reasonably be requested by the County to enable the
County to determine that the Company has complied with the requirements of this
Agreement and the Indenture subsequent to the issuance of the Bonds. Such
compliance shall include, but not be limited to, the proper use of the Bonds
proceeds for the intended purposes of the Indenture and this Agreement and
compliance with any federal arbitrage rebate requirements. The Company agrees to
advance all funds necessary to enable the County to engage and pay for such
auditors, accountants, financial advisors, counsel or other professionals for
purposes of reasonably determining such compliance.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall be an "Event of
Default" under this Agreement:
(a) Failure by the Company to pay when due the amounts
required to be paid pursuant to the Note which failure, in the case of
such amounts in respect of interest on any Bond, continues for five
days, or the failure by the Company to pay within 30 days of the date
due any 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 90 days after written notice,
specifying such failure and requesting that it be remedied, is given to
the Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period prior to
its expiration; provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, the Issuer and the
Trustee will not unreasonably withhold their consent to an extension of
such period if corrective action is instituted by the Company within
the applicable period and diligently pursued until the default is
corrected.
(c) The dissolution or liquidation of the Company, except as
permitted by Section 4.3 hereof, or the commencement by the Company of
any case or proceeding seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other similar law
of the United States or any state, or adjudication of the Company as
bankrupt, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any proceeding
for its reorganization instituted under the provisions of Title 11 of
the United States Code, as amended, or under any similar statutory
provision which may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the limitation that,
if by reason of force majeure the Company is unable in whole or in part to carry
out its agreements herein contained other than those set forth in Sections 3.2,
4.3 and 4.8 hereof, an Event of Default shall not be deemed to have occurred
during the continuance of such inability. The term "force majeure" as used
herein shall mean the following: acts of God; strikes; lockouts or other
industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States or of the State of Florida or any of their
departments, agencies or officials or of any civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; tornadoes; storms; floods; washouts; droughts; arrests; restraints
of government and people; civil disturbances; explosions; breakage or accident
to machinery, transmission lines, pipes or canals; partial or entire failure of
utilities; or any other cause or event not reasonably within the control of the
Company. The Company agrees, however, to remedy to the extent practicable with
all reasonable dispatch the effects of any force majeure preventing the Company
from carrying out its agreements; provided that the settlement of strikes,
lockouts and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required to make
settlement of strikes, lockouts and other industrial disturbances by acceding to
the demands of the opposing party or parties when such course is in the judgment
of the Company unfavorable to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of Default shall
have occurred and be continuing, the Issuer may, in addition to any other remedy
now or hereafter existing at law, in equity or by statute, take either or both
of the following remedial steps:
(a) By written notice to the Company, the Issuer may
accelerate and declare all amounts payable pursuant to the Note to be
immediately due and payable, whereupon the same shall become
immediately due and payable;
(b) The Issuer may take whatever action at law or in equity
may appear necessary or desirable to collect the amounts referred to in
(a) above then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section 5.2 shall be
deposited with the Trustee and applied in accordance with the provisions of the
Indenture or, if the Bonds have been fully paid (or provision for payment
thereof has been made in accordance with the provisions of the Indenture) and
the fees and expenses of the Trustee and the paying agents and all other amounts
required to be paid under the Indenture shall have been paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should breach any of the provisions of the Note or this
Agreement and the Issuer should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay to the Issuer
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in the Note or in this Agreement should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. Except as otherwise expressly
provided herein, this Agreement shall remain in full force and effect from the
date hereof until such time as all of the outstanding Bonds shall have been
fully paid or provision made therefor in accordance with the provisions of the
Indenture, whichever shall first occur, and the fees and expenses of the Trustee
and any paying agents and all other amounts payable by the Company under this
Agreement and the Note shall have been paid.
SECTION 6.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid, addressed as
follows: if to the Issuer, to the Chairman of the Board of Commissioners,
Jackson County Administration Building, Marianna, Florida 32446; if to the
Company, at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention:
Treasurer, with copies to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Corporate Finance Department; and if to
the Trustee, at 225 Water Street, 3rd Floor, Jacksonville, Florida 32202,
Attention: Corporate Trust Department. A duplicate copy of each notice,
certificate or other communication given hereunder by either the Issuer or the
Company to the other shall also be given to the Trustee. The Issuer, the Company
and the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 6.5. Amendments. This Agreement may not be effectively
terminated except in accordance with the provisions hereof and may not be
effectively amended except by a written agreement in accordance with Article XI
of the Indenture and signed by the parties hereto.
SECTION 6.6. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 6.7. Applicable Law. This Agreement and the Note shall be governed
by and construed in accordance with the laws of the State of Florida.
SECTION 6.8. Captions. The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement.
SECTION 6.9. Other Financing. Notwithstanding anything in this
Agreement to the contrary, the Issuer and the Company may hereafter enter into
agreements to provide for the financing or refinancing of costs of the Project
or any portion thereof.
<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.
JACKSON COUNTY, FLORIDA
[SEAL] By:
Chairman of the Jackson County
Board of County Commissioners
ATTEST:
Clerk of the Jackson County
Board of County Commissioners
GULF POWER COMPANY
[SEAL] By:
President and Chief Executive Officer
ATTEST:
Assistant Secretary
<PAGE>
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
GULF POWER COMPANY ("Gulf"), a corporation organized and existing under
the laws of the State of Maine, acknowledges itself indebted and for value
received hereby promises to pay to the order of Jackson County, Florida (the
"County"), and its successors and assigns, the principal sum of THREE MILLION
NINE HUNDRED THIRTY THOUSAND DOLLARS ($3,930,000) together with interest on the
unpaid principal balance thereof from the date hereof until Gulf's obligations
with respect to the payment of such sum shall be discharged at the rate or rates
borne by the Bonds referred to below. As additional interest hereon there shall
be payable, and Gulf promises to pay when due, amounts which shall equal the
premium, if any, due on such Bonds in connection with the redemption thereof.
Gulf further promises to pay the purchase price of such Bonds as hereinbelow
provided.
This Note is issued to evidence the Loan (as defined in the Agreement
hereinafter referred to) of the County to Gulf and the obligation of Gulf to
repay the same and shall be governed by and be payable in accordance with the
terms and conditions of a loan agreement (the "Agreement") between the County
and Gulf dated as of July 1, 1997, pursuant to which the County has loaned to
Gulf the proceeds of the sale of the County's $3,930,000 of Pollution Control
Revenue Refunding Bonds (Gulf Power Company Project), Series 1997 (the "Bonds").
This Note (together with the Agreement) has been assigned to First Union
National Bank (the "Trustee"), acting pursuant to a trust indenture dated as of
July 1, 1997 (the "Indenture") between the County and the Trustee, and may not
be assigned by the Trustee except to a successor Trustee pursuant to the terms
of the Indenture. Such assignment is made as security for the Bonds. The Bonds
are dated and bear interest in accordance with the provisions of the Indenture,
and mature on July 1, 2022. The Bonds are subject to redemption or prior
purchase prior to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon are to be
made by paying to the Trustee, as assignee of the County, in funds which will be
immediately available on the day payment is due, amounts which, and at or before
times which, shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in whatever manner
the same shall become due, whether at stated maturity, upon redemption or
declaration or otherwise, and the purchase price of Bonds required to be
purchased under the Indenture. If (i) on the date any payments on the Bonds are
due there are any available moneys on deposit with the Trustee which are not
being held for the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are required to be
purchased pursuant to the Bonds or Article III of the Indenture, there are
available moneys on deposit with the Trustee held for the payment of the
purchase price which are not being held for the payment of Bonds which have not
been presented for payment, then, in each case, such moneys shall be credited
against the payment then due hereunder, first in respect of interest and then,
to the extent of remaining moneys, in respect of principal. Upon the occurrence
of an Event of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable as provided in
the Agreement.
Neither the officers of Gulf nor any persons executing this Note shall
be liable personally or shall be subject to any personal liability or
accountability by reason of the issuance hereof.
This Note is secured by that certain Deed of Trust referred to in the
Agreement.
<PAGE>
IN WITNESS WHEREOF, Gulf Power Company has caused this Note to be
executed in its corporate name and on its behalf by its President, its Treasurer
or a Vice President by his manual signature, and its corporate seal to be
impressed hereon and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
GULF POWER COMPANY
By:
Attest:
<PAGE>
ASSIGNMENT
Pay to the order of First Union National Bank, as assignee of Jackson
County, Florida under the Trust Indenture, dated as of July 1, 1997, between
Jackson County, Florida and First Union National Bank, as Trustee, securing the
payment of Jackson County, Florida Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series 1997, in the original principal amount of
$3,930,000.
JACKSON COUNTY, FLORIDA
By:
Exhibit C
ESCAMBIA COUNTY, FLORIDA
to
FIRST UNION NATIONAL BANK,
as Trustee
TRUST INDENTURE
Dated as of July 1, 1997
Relating to
$37,000,000
Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project)
Series 1997
<PAGE>
i
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS AND RULES OF CONSTRUCTION...........................3
Section 1.01. Definitions.................................................3
Section 1.02. Rules of Construction.......................................7
ARTICLE II: THE BONDS......................................................7
Section 2.01. Issuance of Bonds; Form; Dating.............................7
Section 2.02. Interest on the Bonds.......................................8
Section 2.03. Execution and Authentication...............................14
Section 2.04. Bond Register..............................................14
Section 2.05. Registration and Exchange of Bonds; Persons Treated
as Owners...........14
Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds....15
Section 2.07. Cancellation of Bonds......................................16
Section 2.08. Temporary Bonds............................................16
ARTICLE III: REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING...16
Section 3.01. Notices to Trustee.........................................16
Section 3.02. Redemption Dates...........................................16
Section 3.03. Selection of Bonds to Be Redeemed..........................16
Section 3.04. Redemption Notices.........................................17
Section 3.05. Payment of Bonds Called for Redemption.....................18
Section 3.06. Bonds Redeemed in Part.....................................18
Section 3.07. Purchase of Bonds in Lieu of Redemption....................18
Section 3.08. Disposition of Purchased Bonds.............................19
ARTICLE IV: APPLICATION OF PROCEEDS AND PAYMENT OF BONDS...................21
Section 4.01. Application of Proceeds....................................21
Section 4.02. Payment of Bonds...........................................21
Section 4.03. Investments of Moneys......................................21
Section 4.04. Moneys Held in Trust; Unclaimed Funds......................22
ARTICLE V: BOOK-ENTRY SYSTEM..............................................22
Section 5.01. Book-Entry System..........................................23
ARTICLE VI: COVENANTS.....................................................24
Section 6.01. Payment of Bonds...........................................24
Section 6.02. Performance of Covenants; Issuer...........................25
Section 6.03. Recording and Filing; Further Assurances...................25
Section 6.04. Tax Covenants..............................................25
Section 6.05. Rights Under Agreement.....................................26
Section 6.06. Designation of Additional Paying Agents....................26
Section 6.07. Existence of Issuer........................................26
ARTICLE VII: DISCHARGE OF INDENTURE.......................................27
Section 7.01. Bonds Deemed Paid; Discharge of Indenture..................27
Section 7.02. Application of Trust Money.................................28
Section 7.03. Repayment to Company.......................................28
Section 7.04. Satisfaction of the Deed of Trust..........................28
ARTICLE VIII: DEFAULTS AND REMEDIES.......................................28
Section 8.01. Events of Default..........................................28
Section 8.02. Acceleration...............................................29
Section 8.03. Other Remedies.............................................29
Section 8.04. Legal Proceeding by Trustee................................29
Section 8.05. Appointment of Receivers...................................30
Section 8.06. Waiver of Past Defaults....................................30
Section 8.07. Control by Majority........................................31
Section 8.08. Limitation on Suits........................................31
Section 8.09. Rights of Holders to Receive Payment.......................31
Section 8.10. Collection Suit by Trustee.................................31
Section 8.11. Trustee May File Proofs of Claim...........................31
Section 8.12. Priorities.................................................32
Section 8.13. Undertaking for Costs......................................32
ARTICLE IX: TRUSTEE AND REMARKETING AGENT.................................32
Section 9.01. Acceptance of the Trusts...................................32
Section 9.02. Fees, Charges and Expenses of Trustee.....................35
Section 9.03. Notice to Bondholders if an Event of Default Occurs.......35
Section 9.04. Intervention by Trustee...................................35
Section 9.05. Successor Trustee.........................................35
Section 9.06. Resignation by Trustee....................................36
Section 9.07. Removal of Trustee........................................36
Section 9.08. Appointment of Successor Trustee..........................36
Section 9.09. Concerning Any Successor Trustee..........................36
Section 9.10. Successor Trustee as Bond Registrar and Paying Agent......37
Section 9.11. Trustee and Issuer Required to Accept Directions and
Actions of Company........................................37
Section 9.12. No Transfer of Note Held by the Trustee; Exception........37
Section 9.13. Filing of Certain Continuation Statements.................37
Section 9.14 Duties of Remarketing Agent.................................38
Section 9.15 Eligibility of Remarketing Agent............................38
Section 9.16 Replacement of Remarketing Agent............................38
Section 9.17. Compensation of Remarketing Agent..........................38
Section 9.18. Successor Remarketing Agent................................38
ARTICLE X: AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE......................39
Section 10.01. Without Consent of Bondholders............................39
Section 10.02. With Consent of Bondholders...............................40
Section 10.03. Effect of Consents........................................40
Section 10.04. Notation on or Exchange of Bonds..........................40
Section 10.05. Signing by Trustee of Amendments and Supplements..........40
Section 10.06. Company Consent Required..................................40
Section 10.07. Notice to Bondholders.....................................41
ARTICLE XI AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT..................41
Section 11.01. Without Consent of Bondholders............................41
Section 11.02. With Consent of Bondholders...............................41
Section 11.03. Consents by Trustee to Amendments or Supplements..........41
ARTICLE XII MISCELLANEOUS.................................................42
Section 12.01. Notices...................................................42
Section 12.02. Bondholders' Consents.....................................42
Section 12.03. Appointment of Separate Paying Agent and/or Tender Agent..43
Section 12.04. Limitation of Rights......................................43
Section 12.05. Severability..............................................43
Section 12.06. Payments Due on Non-Business Days.........................43
Section 12.07. Governing Law.............................................43
Section 12.08. Captions..................................................43
Section 12.09. No Liability of Officers..................................43
Section 12.10. Limitation Upon Responsibility of the Issuer..............41
Section 12.11. Counterparts..............................................44
<PAGE>
TRUST INDENTURE
THIS INDENTURE made and entered into as of July 1, 1997, by and between
ESCAMBIA COUNTY, FLORIDA, a "local agency" as defined in the Florida Industrial
Development Financing Act, being Part II of Chapter 159, Florida Statutes,
Sections 159.25 through 159.431, as amended (the "Act"), and a political
subdivision of the State of Florida (the "Issuer"), and FIRST UNION NATIONAL
BANK, a national banking association duly organized, existing and authorized to
accept and execute trusts of the character herein set out under and by virtue of
the laws of the United States of America, as trustee (the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the Issuer has entered
into a Loan Agreement dated as of July 1, 1997 (the "Agreement") with Gulf Power
Company (the "Company") providing for the undertaking by the Issuer to loan
amounts to the Company in order to refund certain of the Issuer's bonds
heretofore issued to refinance the acquisition, construction, installation and
equipping of the Company's interest in certain air and water pollution control
and sewage and solid waste disposal facilities, or portions thereof, at Plant
Crist in Escambia County, Florida and Plant Lansing Smith, in Bay County,
Florida.
B. The Agreement provides that, for the purposes therein set forth, the
Issuer will issue and sell its Pollution Control Revenue Refunding Bonds (Gulf
Power Company Project), Series 1997, in the aggregate principal amount of
$37,000,000 (the "Bonds"); that the Issuer will loan the proceeds of the Bonds
to the Company; and that to evidence the Loan (as hereinafter defined) the
Company will execute and deliver, concurrently with the issuance of the Bonds, a
non-negotiable promissory note in a like principal amount bearing interest at
the rate or rates borne by the Bonds.
C. The execution and delivery of this Indenture (as hereinafter
defined) and the Agreement and the issuance and sale of the Bonds have been in
all respects duly and validly authorized by resolution duly adopted by the
Issuer.
D. The Company has agreed to make payments on the aforementioned
promissory note to the Issuer in amounts sufficient to pay the principal,
purchase price, premium, if any, and interest on the Bonds, all as hereinafter
defined.
E. The Trustee has accepted the trusts created by this Indenture and in
evidence thereof has joined in the execution hereof.
Accordingly, the Issuer and the Trustee agree as follows for the
benefit of each other and for the benefit of the holders of the Bonds issued
pursuant to this Indenture.
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in consideration of the
premises, of the acceptance by the Trustee of the trusts hereby created, and the
purchase and acceptance of the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the Issuer in hand paid by the
Trustee at or before the execution and delivery of this Indenture, the receipt
of which is hereby acknowledged, and for the purpose of fixing and declaring the
terms and conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from time to time be or
become holders thereof, and in order to secure the payment of all Bonds at any
time issued and outstanding hereunder and the interest and the premiums, if any,
payable upon redemption or purchase in lieu of redemption 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, and will cause
the Company to deliver to the Trustee the Deed of Trust (as hereinafter defined)
and the Company's promissory note dated the date of the initial issuance of the
Bonds; 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 the Deed of Trust and such promissory
note and all payments, if any, made and to be made thereunder as security for
the payment of all outstanding Bonds and the interest and the premium, if any,
thereon and does hereby bargain, sell, convey, assign and pledge to the Trustee,
and grant to the Trustee a security interest in, all other rights, title and
interests of the Issuer in, to and under the Agreement and all moneys receivable
thereunder (except for Unassigned Rights, as defined herein) as security for the
satisfaction of any other obligation assumed by it in connection with all
outstanding Bonds at any time issued hereunder;
TO HAVE AND TO HOLD the same unto the Trustee and its successors in trust
forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for
the equal and proportionate benefit and security of all and singular present and
future holders of the Bonds issued under this Indenture, without preference,
priority or distinction as to lien or otherwise, except as otherwise hereinafter
provided, of any one Bond over any other Bond, by reason of priority in the
issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns shall
pay or cause to be paid the principal of, premium, if any, and interest on the
Bonds due or to become due thereon, at the times and in the manner mentioned in
the Bonds, and shall perform all the covenants and conditions required of it by
this Indenture, and shall pay or cause to be paid to the Trustee and any
additional paying agents all sums of money due or to become due to them in
accordance with the terms and provisions hereof, then upon such final payments
this Indenture and the rights hereby granted shall terminate and the Trustee
shall release this Indenture and shall execute such documents to evidence such
termination and release as may be reasonably required by the Issuer; otherwise
this Indenture to be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds from time to time issued and secured hereunder are to be issued,
authenticated and delivered, and all said property, rights and interests,
including, without limitation, the amounts hereby assigned and pledged, are to
be dealt with and disposed of subject to the terms of this Indenture, and the
Issuer agrees with the Trustee and with the respective owners, from time to
time, of said Bonds, or part thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. For all purposes of this Indenture, unless the
context requires otherwise, the following terms shall have the following
meanings:
"Act" means the Florida Industrial Development Financing Act, being
Part II of Chapter 159, Florida Statutes, Sections 159.25 through 159.431, as
amended.
"Agreement" means the Loan Agreement dated as of July 1, 1997, between
the Issuer and the Company, as amended and supplemented from time to time.
"Beneficial Owner" means the purchaser of a beneficial interest in the
Bonds when the Bonds are held by the Securities Depository in the Book-Entry
System, and otherwise means a Bondholder.
"Bondholder" or "holder" means the registered owner of any Bond.
"Bonds" means the Pollution Control Revenue Refunding Bonds (Gulf Power
Company Project), Series 1997 issued by the Issuer hereunder in the aggregate
principal amount of $37,000,000.
"Book-Entry System" means the system maintained by the Securities
Depository described in Section 5.01.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which commercial banks in New York, New York, Jacksonville, Florida,
Atlanta, Georgia, or the city in which the designated corporate trust office of
the Trustee is located, are authorized by law to close or (iii) a day on which
the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury regulations thereunder.
"Commercial Paper Mode" means each period of time, comprised of
Commercial Paper Periods, during which Commercial Paper Rates are in effect.
"Commercial Paper Period" means, with respect to any Bond, each period
set under Section 2.02(a)(3).
"Commercial Paper Rate" means the interest rate on each Bond set under
Section 2.02(a)(3).
"Company" means Gulf Power Company, a Maine corporation, and its
successors and assigns, and any surviving, resulting or transferee entity as
provided in Section 4.3 of the Agreement.
"Daily Rate" means an interest rate on the Bonds set under Section
2.02(a)(l).
"Deed of Trust" means the Subordinate Land Deed of Trust dated July 1,
1997 between the Company, as grantor, and the Issuer, as beneficiary, providing
for the security conveyance of certain property of the Company described
therein.
"Event of Default" is defined in Section 8.01.
"Favorable Opinion of Tax Counsel" means an Opinion of Tax Counsel
addressed to the Issuer and to the Trustee to the effect that the action
proposed to be taken is permitted by the laws of the State and by this Indenture
and will not adversely affect any exclusion from gross income for federal income
tax purposes of interest on the Bonds.
"Government Obligations" means (i) noncallable direct obligations of
the United States for which its full faith and credit are pledged, (ii)
noncallable obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States, or (iii) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of obligations
described in (i) or (ii).
"Indenture" means this Trust Indenture, as it may be amended or
supplemented from time to time in accordance with its terms.
"Interest Payment Date" is defined in the form of the Bonds appearing
in Exhibit A hereto.
"Interest Period" is defined in the form of the Bonds appearing in Exhibit
A hereto.
"J.J. Kenny Index" means, as of any date, the index of 7-day yields on
high grade tax exempt municipal bonds as determined by J.J. Kenny Co., Inc. or
any successor thereto and published on such date (or, if not published on said
date, on the most recent day prior thereto on which such index shall have been
so published).
"Long-Term Interest Rate" means an interest rate on the Bonds set under
Section 2.02(a)(4).
"Long-Term Interest Rate Period" is defined in Section 2.02(a)(4).
"Maturity Date" means the stated maturity for the Bonds as set forth in
Section 2.01.
"1987 Indenture" means the Trust Indenture dated as of June 1, 1987, as
supplemented and amended, between the Issuer and the 1987 Refunded Bonds Trustee
under which the 1987 Refunded Bonds were issued.
"1987 Refunded Bonds" means $32,000,000 principal amount of the
Issuer's Pollution Control Revenue Refunding Bonds (Gulf Power Company Project),
Series 1987, being refunded by the Bonds.
"1987 Refunded Bonds Trustee" means First Union National Bank, as
successor to Florida National Bank, in its capacity as trustee for the 1987
Refunded Bonds.
"1954 Code" means the Internal Revenue Code of 1954, as amended, and
the Treasury regulations thereunder.
"1992 Indenture" means the Trust Indenture dated as of March 1, 1992,
as supplemented and amended, between the Issuer and the 1992 Refunded Bonds
Trustee under which the 1992 Refunded Bonds were issued.
"1992 Refunded Bonds" means $5,000,000 principal amount of the Issuer's
Pollution Control Revenue Refunding Bonds (Gulf Power Company Project), Series
1992, being refunded by the Bonds.
"1992 Refunded Bonds Trustee" means First Union National Bank, as
successor to First Union National Bank of Florida, in its capacity as trustee
for the 1992 Refunded Bonds.
"Note" means the promissory note executed and delivered by the Company
concurrently with the issuance of the Bonds in a like principal amount bearing
interest at the rate or rates borne by the Bonds.
"Opinion of Counsel" means a written opinion of counsel who is
acceptable to the Issuer and the Trustee. Such counsel may be an employee of or
counsel to the Issuer, the Trustee or the Company.
"Opinion of Tax Counsel" means an Opinion of Counsel by counsel of
nationally recognized standing in matters relating to the exclusion of interest
from gross income on obligations issued by or on behalf of states and their
political subdivisions.
The term "outstanding" when used with reference to Bonds, or "Bonds
outstanding" means all Bonds which have been authenticated and delivered by the
Trustee under this Indenture, except the following:
a. Bonds canceled or purchased by or delivered to the Trustee for
cancellation.
b. Bonds that have become due (at maturity or on redemption,
acceleration or otherwise) and for the payment, including interest
accrued to the due date, of which sufficient moneys are held by the
Trustee.
c. Bonds deemed paid by Section 7.01.
d. Bonds in lieu of which others have been authenticated under
Section 2.05 (relating to registration and exchange of Bonds) or
Section 2.06 (relating to mutilated, lost, stolen, destroyed or
undelivered Bonds).
Bonds purchased pursuant to tenders or in lieu of redemption and not delivered
to the Trustee for payment are not outstanding, but there will be outstanding
Bonds authenticated and delivered in lieu of such undelivered Bonds as provided
in the second paragraph of Section 2.06.
"Participant" means one of the entities which deposit securities,
directly or indirectly, in the Book-Entry System.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
The term "principal," when used with reference to any Bonds, includes
any premium payable on those Bonds.
"Prior Indentures" means the 1987 Trust Indenture and the 1992 Trust
Indenture.
"Project" has the meaning assigned to such term in the Agreement.
"Record Date" is defined in the form of the Bonds appearing as Exhibit A
hereto.
"Refunded Bonds" means the 1987 Refunded Bonds and the 1992 Refunded Bonds.
"Refunded Bonds Trustees" means the 1987 Refunded Bonds Trustee and the
1992 Refunded Bonds Trustee.
"Remarketing Agent" means SunTrust Bank, Atlanta and its successors
under this Indenture.
"Responsible Officer" means any officer or trust officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Securities Depository" means The Depository Trust Company, New York,
New York or its nominee, and its successors and assigns, or any successor
appointed under Section 5.01.
"State" means the State of Florida.
"Trustee" means the entity identified as such in the heading of this
Indenture and its successors under this Indenture.
"Unassigned Rights" means the rights of the Issuer under Section 4.2
and Section 5.3 of the Agreement.
"Weekly Rate" means an interest rate on the Bonds set under Section
2.02(a)(2).
Section 1.02. Rules of Construction. Unless the context otherwise requires,
a. an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles,
b. references to Articles and Sections are to the Articles and
Sections of this Indenture, and
c. the singular form of any word, including the terms defined in
Section 1.01, includes the plural, and vice versa, and a word of any
gender includes all genders.
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating. The Bonds shall be
designated "Escambia County, Florida Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series 1997." The total principal amount of Bonds
that may be outstanding shall not exceed $37,000,000. The Bonds shall be
substantially in the form of Exhibit A, which is part of this Indenture, in the
denominations provided for in the Bonds. The Bonds may have notations, legends
or endorsements required by law or usage.
All Bonds will be dated the date of original issuance and delivery and
shall mature, subject to prior redemption, on July 1, 2022. Bonds will be
numbered as determined by the Trustee.
Upon the execution and delivery of this Indenture, the Issuer will
execute and deliver to the Trustee and the Trustee will authenticate the Bonds
and deliver them to the purchaser or purchasers as directed by the Issuer.
Section 2.02. Interest on the Bonds. Interest on the Bonds will be
payable as provided in the Bonds and in this Section. Interest on the Bonds will
initially be payable at the Daily Rate. The interest rate determination method
may be changed by the Company as described in paragraph (b) below. The methods
of determining the various interest rates are as provided in the following
paragraph (a).
(a) Interest Rate Determination Methods. While there exists an Event of
Default under the Indenture, the interest rate on the Bonds will be the rate on
the Bonds on the day before the Event of Default occurred, except that if
interest on any Bond was then payable at a Commercial Paper Rate, the interest
rate for all Bonds then bearing interest at a Commercial Paper Rate will be the
highest Commercial Paper Rate then in effect for any Bond.
(1) Daily Rate. When interest on the Bonds is payable at a
Daily Rate, the Remarketing Agent will set a Daily Rate on or before
11:00 a.m., New York City time, on each Business Day for that Business
Day. Each Daily Rate will be the minimum rate necessary (as determined
by the Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing Agent to
have been priced or traded under then-prevailing market conditions) for
the Remarketing Agent to sell the Bonds on the day the rate is set at
their principal amount (without regard to accrued interest). The Daily
Rate for any non-Business Day will be the rate for the last day for
which a rate was set.
(2) Weekly Rate. When interest on the Bonds is payable at a
Weekly Rate, the Remarketing Agent will set a Weekly Rate on or before
5:00 p.m., New York City time, on the last Business Day before the
commencement of a period during which the Bonds bear interest at a
Weekly Rate and on each Tuesday thereafter so long as interest on the
Bonds is to be payable at a Weekly Rate or, if any Tuesday is not a
Business Day, on the next preceding Business Day. Each Weekly Rate will
be the minimum rate necessary (as determined by the Remarketing Agent
based on the examination of tax-exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been priced or traded
under then prevailing market conditions) for the Remarketing Agent to
sell the Bonds on the date the rate is set at their principal amount
(without regard to accrued interest). Thereafter, each Weekly Rate
shall apply to (i) the period beginning on the Wednesday after the
Weekly Rate is set and ending on the following Tuesday or, if earlier,
ending on the day before the effective date of a new method of
determining the interest rate on the Bonds or (ii) the period beginning
on the effective date of the change to a Weekly Rate and ending on the
next Tuesday.
(3) Commercial Paper Rate. During a Commercial Paper Mode,
each Bond will bear interest during the Commercial Paper Period for
such Bond at the Commercial Paper Rate for such Bond. Different
Commercial Paper Periods may apply to different Bonds at any time and
from time to time. Except as otherwise described in this subparagraph
(3), the Commercial Paper Period and Commercial Paper Rate for each
Bond will be determined by the Remarketing Agent no later than 12:15
p.m., New York City time, on the first day of each Commercial Paper
Period.
(i) Determination of Commercial Paper Periods.
Subject to Section 2.02(b)(2)(vii), each Commercial Paper
Period will be a period of at least 1 day and not more than 365
days, determined by the Remarketing Agent to be the period
which, together with all other Commercial Paper Periods for all
Bonds then outstanding, will, in the judgment of the
Remarketing Agent, result in the lowest overall interest
expense on the Bonds over the next 365 days. Each Commercial
Paper Period will end on either the day before a Business Day
or on the day before the Maturity Date for such Bond. However,
any Bond purchased on behalf of the Company and remaining
unsold by the Remarketing Agent as of the close of business on
the first day of the Commercial Paper Period for that Bond will
have a Commercial Paper Period of 1 day or, if that Commercial
Paper Period would not end on a day before a Business Day, a
Commercial Paper Period of the shortest possible duration
greater than 1 day ending on a day before a Business Day.
In determining the number of days in each Commercial
Paper Period, the Remarketing Agent shall take into account the
following factors: (I) existing short-term tax-exempt market
rates and indices of such short-term rates, (II) the existing
market supply and demand for short-term tax-exempt securities,
(III) existing yield curves for short-term and long-term
tax-exempt securities for obligations of credit quality
comparable to the Bonds, (IV) general economic conditions, (V)
industry economic and financial conditions that may affect or
be relevant to the Bonds, (VI) the number of days in other
Commercial Paper Periods applicable to the Bonds and (VII) such
other facts, circumstances and conditions as the Remarketing
Agent, in its sole discretion, shall determine to be relevant.
(ii) Determination of Commercial Paper Rates. The
Commercial Paper Rate for each Commercial Paper Period for each
Bond shall be the minimum rate necessary (as determined by the
Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing
market conditions) for the Remarketing Agent to sell such Bond
on the date and at the time of such determination at its
principal amount (without regard to accrued interest).
(4) Long-Term Interest Rate. The Remarketing Agent will set a
Long-Term Interest Rate on a date no more than 15 days before the
beginning of any period (a "Long-Term Interest Rate Period") in which
interest on any of the Bonds will be payable at a Long-Term Interest
Rate. The last day of each such Long-Term Interest Rate Period shall be
determined by the Company in accordance with Section 2.02(b)(1). Each
Long-Term Interest Rate will be the minimum rate necessary (as
determined by the Remarketing Agent based on the examination of
tax-exempt obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell the Bonds on the
effective date of the Long-Term Interest Rate at their principal amount
(without regard to accrued interest).
(5) Failure of Remarketing Agent to Announce Interest Rates on
the Bonds. If the appropriate interest rate or Commercial Paper Period
is not or cannot be determined for whatever reason, the method of
determining interest on the Bonds shall be automatically converted to
the Weekly Rate (without the necessity of complying with the
requirements of Section 2.02(b)) and the interest rate shall be equal
to the J.J. Kenny Index, or such other index (or percentage of an
index) deemed appropriate for tax-exempt securities of the nature of
the Bonds as the Remarketing Agent, with the consent of the Trustee,
may have previously selected, until such time as the method of
determining interest on the Bonds can be changed in accordance with
Section 2.02(b); provided, that if the Bonds are then in a Long-Term
Interest Rate Period, the Bonds shall bear interest at a Weekly Rate,
but only if a Favorable Opinion of Tax Counsel with respect to the
change to a Weekly Rate has been delivered to the Trustee and the
Issuer. If such Favorable Opinion of Tax Counsel has not been
delivered, the Bonds shall remain in a Long-Term Interest Rate Period
with an interest rate equal to the interest rate for the prior
Long-Term Interest Rate Period and with a duration equal to the prior
Long-Term Interest Rate Period (or, if earlier, a Long-Term Interest
Rate Period ending on the day before the Maturity Date for such Bond).
The Trustee shall promptly notify the Bondholders of any such automatic
change as set forth in Section 2.02(c).
While Bonds are in a Commercial Paper Mode, during any
transition period caused by an automatic conversion of such Bonds to a
Weekly Rate in accordance with this Subsection (5), Bonds bearing
interest at a Weekly Rate and Bonds bearing interest at a Commercial
Paper Rate, as applicable, shall be governed by the provisions of this
Indenture applicable to such methods of determining interest on the
Bonds.
(b) (1) Change in Interest Rate Determination Method. The Company may
change the method of determining the interest rate on the Bonds by notifying the
Issuer, the Trustee, the Remarketing Agent and, if a Book-Entry System is then
in effect for the Bonds, the Securities Depository. Such notice shall contain
(a) the effective date, (b) the proposed interest rate determination method, and
(c) if the change is to a Long-Term Interest Rate or Rates, the last day of the
first such Long-Term Interest Rate Period and, at the option of the Company, the
effective date and last day of any successive Long-Term Interest Rate Periods
(which last day for each Long-Term Interest Rate Period must be either the day
before the Maturity Date for such Bonds or a day which is before a Business Day
and is at least 365 days after the effective date). The Long-Term Interest Rate
Period shall be the same duration for all of the Bonds. The notice must be
accompanied by a Favorable Opinion of Tax Counsel, except as described below. If
the Company's notice complies with this paragraph, and if the Company shall
deliver addressed to the Trustee and the Issuer a confirming Opinion of Tax
Counsel on the effective date as specified in the notice, the interest rate on
the Bonds will be payable at the new rate on the effective date specified in the
notice until there is another change as provided in this Section.
Notwithstanding anything in this Indenture to the contrary, the Company must
deliver a Favorable Opinion of Tax Counsel whenever there is a change from a
period during which the interest rate on the Bonds is set at intervals of 365
days or less to a period during which the interest rate on the Bonds is set at
intervals in excess of 365 days, or vice versa.
If the Company wishes to designate successive Long-Term Interest Rate
Periods without specifying the effective dates and last days as described in the
preceding paragraph for the second or any subsequent Long-Term Interest Rate
Periods, it may do so by following the same procedure as for a change in the
interest rate determination method as provided in the foregoing paragraph.
If, 30 days before the end of a Long-Term Interest Rate Period, the
Company has not provided for the next interest rate period, a new Long-Term
Interest Rate Period of the same duration will follow (or if shorter, a
Long-Term Interest Rate Period ending on the day before the Maturity Date for
the Bonds).
When one Long-Term Interest Rate Period follows another, all provisions
of this Indenture applying to a change in the interest rate determination method
will apply, except:
(A) the redemption described under "Mandatory Redemption Upon a
Change in the Method of Determining the Interest Rate on the Bonds" in
the Bonds;
(B) the Company will not be required to deliver a Favorable
Opinion of Tax Counsel if a new Long-Term Interest Rate Period begins
as a result of the Company failing to provide for the next interest
rate period; and
(C) the Company will not be required to deliver a Favorable
Opinion of Tax Counsel if the Company has previously designated a
series of successive Long-Term Interest Rate Periods which, together
with the current Long-Term Interest Rate Period, are substantially
equal in length, and if a Favorable Opinion of Tax Counsel was
delivered before the first such Long-Term Interest Rate Period in that
series which applies to each such successive Long-Term Interest Rate
Period.
(2) Limitations. Any change in the method of determining interest on the
Bonds pursuant to paragraph (1) above must comply with the following:
(i) the effective date of a change (or each effective date in
the case of a change from a Commercial Paper Mode) shall be a Business
Day which is at least 15 days (30 days if a Long-Term Interest Rate is
then in effect and the effective date is before the day after the last
day of a Long-Term Interest Rate Period) after the twelfth Business Day
after receipt by the Trustee of the Company's notice of the change;
(ii) if a Long-Term Interest Rate is then in effect, the
effective date of any change must be either the day after the last day
of the then current Long-Term Interest Rate Period or, except as
described in clause (iii) below, a day on which the Bonds would
otherwise be subject to redemption or purchase in lieu of redemption
under the paragraph "Optional Redemption at a Premium During Long-Term
Interest Rate Period" in Section 8 of the Bonds if the change did not
occur;
(iii) if the Company has previously designated successive
Long-Term Interest Rate Periods, the effective date of each Long-Term
Interest Rate Period must be the day after the last day of the previous
Long-Term Interest Rate Period;
(iv) if a Commercial Paper Mode is then in effect, the
effective date of any change must be either the day after the last day
of the Commercial Paper Mode or, as to any Bond, the day after the last
day of the Commercial Paper Period then in effect (or to be in effect)
with respect to that Bond;
(v) if any Bonds have been called for redemption and the
redemption has not yet occurred, the effective date of the change
cannot be before such redemption date;
(vi) if a Long-Term Interest Rate or a Daily Rate is then in
effect, the effective date of any change cannot occur during the period
after a Record Date and to, but not including, the related Interest
Payment Date; and
(vii) if a Commercial Paper Mode is then in effect, the
Remarketing Agent shall determine Commercial Paper Periods of such
duration that will, in the judgment of the Remarketing Agent, best
promote an orderly transition on the effective date. After the receipt
by the Trustee of the Company's notice of such change, the day after
the last day of each Commercial Paper Period shall be, with respect to
such Bond, the effective date of the change. The Remarketing Agent
shall promptly give written notice of each such last date and each such
effective date with respect to each Bond to the Issuer, the Company,
and the Trustee.
During any such transition period, Bonds bearing interest at a
Commercial Paper Rate shall be governed by the provisions of this
Indenture applicable to a Commercial Paper Mode and Bonds bearing
interest at a Daily Rate, Weekly Rate or Long-Term Interest Rate, as
applicable, shall be governed by the provisions of this Indenture
applicable to such methods of determining interest on the Bonds.
(c) Notice to Bondholders of Change in Interest Rate Determination
Method. When a change in the interest rate determination method is to be made,
or upon commencement of a new Long-Term Interest Rate Period, the Trustee will,
upon notice from the Company pursuant to Section 2.02(b), notify the Bondholders
by first class mail at least 15 days before the effective date (or each
effective date in the case of an adjustment from a Commercial Paper Mode) of the
change, except that such notice shall be given at least 30 days prior to the
effective date if a Long-Term Interest Rate is in effect and the effective date
is on or before the end of the Long-Term Interest Rate Period. The notice shall
be effective when sent and shall state:
(1) that the interest rate determination method will be changed
and what the new method will be,
(2) the effective date of the new rate, and
(3) that a mandatory redemption or mandatory purchase in lieu of
redemption will result on the effective date of the change as provided
in the Bonds and all the information required by this Indenture to be
included in a notice of redemption set forth in Section 3.04.
The information required in any notice pursuant to this subsection (c)
and the information referred to in any redemption notice (including an
Additional Notice) pursuant to Section 3.04 may be combined in a single notice
if it is sent to Bondholders in the manner and at the time specified under
"Notice of Redemption" in Section 8 of the form of the Bonds.
(d) Calculation of Interest. The Remarketing Agent shall provide the
Trustee and the Company with notice in writing or by telephone (any such notice
by telephone to be delivered to a Responsible Officer of the Trustee) promptly
confirmed by facsimile transmission by 12:30 p.m., New York City time,
(1) on the first Business Day after a month in which interest
on the Bonds was payable at a Daily Rate, of the Daily Rate for each
day in such month,
(2) on each day on which a Weekly Rate becomes effective, of the
Weekly Rate,
(3) on the first day of each Commercial Paper Period, of the
length thereof and the Commercial Paper Rate, and, if there is more
than one Commercial Paper Rate then in effect, of the related
applicable principal amounts,
(4) on the first Business Day of a Long-Term Interest Rate
Period, of the Long-Term Interest Rate or Long-Term Interest Rates set
for that period and the related applicable principal amounts, and
(5) on any Business Day preceding any redemption or purchase
date, any interest rate requested by the Trustee in order to enable it
to calculate the accrued interest, if any, due on such redemption or
purchase date.
Using the rates supplied by this notice, the Trustee will calculate the
interest payable on the Bonds. The Remarketing Agent will inform the Trustee and
the Company orally at the oral request of either of them of any interest rate
set by the Remarketing Agent. The Trustee will confirm the effective interest
rate by telephone or in writing to any Bondholder who requests it in any manner.
The setting of the rates and the determination of Commercial Paper
Periods by the Remarketing Agent and the calculation of interest payable on the
Bonds by the Trustee as provided in this Indenture will be conclusive and
binding on the Issuer, the Company, the Trustee and the owners of the Bonds.
(e) Change in Rate Determination Method-Opinions of Counsel.
Notwithstanding any provision of this Section 2.02, no change shall be made in
the interest rate determination method at the direction of the Company pursuant
to Section 2.02(b)(1) hereof if the Company shall fail to deliver a Favorable
Opinion of Tax Counsel and confirmation thereof required under Section
2.02(b)(1). If the Trustee shall have sent any notice to the Bondholders
regarding a change in rate under Section 2.02(c), then in the event of such
failure to deliver such opinion or confirmation, the Trustee shall promptly
notify all Bondholders of such failure.
Section 2.03. Execution and Authentication. The Bonds shall be signed
on behalf of the Issuer with the manual or facsimile signature of the Chairman
or Vice Chairman of its Board of County Commissioners and attested by the manual
or facsimile signature of its Clerk or Deputy Clerk, and the seal of the Issuer
shall be impressed or imprinted on the Bonds by facsimile or otherwise. All
authorized facsimile signatures shall have the same effect as if manually
signed. If an officer of the Issuer whose signature is on a Bond no longer holds
that office at the time the Trustee authenticates the Bond, the Bond shall
nevertheless be valid. Also, if a person signing a Bond is the proper officer on
the actual date of execution, the Bond shall be valid even if that person is not
the proper officer on the nominal date of action.
A Bond shall not be valid for any purpose under this Indenture until
the Trustee manually signs the certificate of authentication on the Bond. Such
signature shall be conclusive evidence that the Bond has been authenticated
under this Indenture.
As a precondition to the initial authentication and delivery of the
Bonds, the Trustee shall receive a request and authorization to the Trustee from
the Issuer, signed by the Chairman or Vice Chairman of the Issuer, to
authenticate and deliver the Bonds to the persons and in the manner therein
described.
Section 2.04. Bond Register. Bonds must be presented at the principal
corporate trust office of the Trustee for registration, registration of
transfer, exchange and payment. Bonds tendered by their holders must be
delivered as specified in the Bonds. The Trustee shall keep a register of Bonds
and of their registration of transfer and exchange, which register shall be open
to inspection by the Issuer and the Company during normal business hours.
Section 2.05. Registration and Exchange of Bonds; Persons Treated as
Owners. Bonds may be registered as transferred only on the register maintained
by the Trustee. Upon surrender for registration of transfer of any Bond to the
Trustee, duly endorsed for transfer or accompanied by an assignment duly
executed by the holder or the holder's attorney duly authorized in writing, the
Trustee will authenticate a new Bond or Bonds of the same maturity, in an equal
total principal amount and registered in the name of the transferee.
Bonds may be exchanged for an equal total principal amount of Bonds of
the same maturity but of different authorized denominations. The Trustee will
authenticate and deliver Bonds that the Bondholder making the exchange is
entitled to receive, bearing numbers not then outstanding.
Except in connection with the purchase of Bonds tendered for purchase
or purchased in lieu of redemption, the Trustee will not be required to register
the transfer of or to exchange any Bond called for redemption or during the
period beginning 15 days before the mailing of notice calling the Bonds or any
portion of the Bonds for redemption and ending on the redemption date.
The registered owner of a Bond shall be treated as the absolute owner
of the Bond for all purposes, and payment of principal, interest or purchase
price shall be made only to or upon the written order of the holder or the
holder's legal representative, notwithstanding any notice, actual or
constructive, to the contrary.
The Trustee will require the payment by a Bondholder requesting
exchange or registration of transfer of any tax or other governmental charge
required to be paid in respect of the exchange or registration of transfer but
will not impose any other charge.
Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds.
If any Bond is mutilated, lost, stolen or destroyed, the Trustee will
authenticate a new Bond of the same denomination with similar terms if any
mutilated Bond shall first be surrendered to the Trustee, and if, in the case of
any lost, stolen or destroyed Bond, there shall first be furnished to the
Issuer, the Trustee and the Company evidence of such loss, theft or destruction,
together with an indemnity, satisfactory to them. If the Bond has matured or
become subject to redemption or purchase, instead of issuing a replacement Bond,
the Trustee may with the consent of the Company pay the Bond without requiring
surrender of the Bond and make such requirements as the Trustee deems fit for
its protection, including a lost instrument bond. The Issuer, the Company and
the Trustee may charge their reasonable fees and expenses in this connection.
If a Bond is called for redemption and the Company elects to purchase
the Bond in lieu of redemption as provided in Article III, or if the holder of a
Bond gives irrevocable instructions to the Remarketing Agent for purchase, and
in each case funds are deposited with the Trustee sufficient for the purchase,
the Trustee upon request of the Company or the Remarketing Agent will
authenticate a new Bond in the same maturity and in the same denomination
registered as the Company or the Remarketing Agent may direct and deliver it to
the Company or upon the Company's order, whether or not the Bond purchased or
called for redemption is ever delivered, and the undelivered Bonds shall be
canceled on the books of the Trustee, whether or not said undelivered Bonds have
been delivered to the Trustee. From and after the purchase date, interest on
such Bond shall cease to be payable to the prior holder thereof, such holder
shall cease to be entitled to the benefits or security of this Indenture and
shall have recourse solely to the funds held by the Trustee for the purchase of
such Bond and the Trustee shall not register any further transfer of such Bond
by such prior holder. All funds held by the Trustee for the purchase of
undelivered Bonds shall be held uninvested.
Section 2.07. Cancellation of Bonds. Whenever a Bond is delivered to
the Trustee for cancellation (upon payment, redemption or otherwise), or for
registration of transfer, exchange or replacement pursuant to Section 2.05 or
Section 2.06, the Trustee will promptly cancel and dispose of the Bond in
accordance with the Trustee's policy of disposal; provided, however, that the
Trustee shall not be required to destroy canceled Bonds.
Section 2.08. Temporary Bonds. Until definitive Bonds are ready for
delivery, the Issuer may execute and the Trustee will authenticate temporary
Bonds substantially in the form of the definitive Bonds, with appropriate
variations. The Issuer will, without unreasonable delay, prepare and the Trustee
will authenticate definitive Bonds in exchange for the temporary Bonds. Such
exchange shall be made by the Trustee without charge.
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee. If the Company wishes that any Bonds
be redeemed pursuant to any optional redemption provision in the Bonds, the
Company will notify the Trustee of the applicable provision, the redemption
date, the principal amount of the Bonds to be redeemed and other necessary
particulars in accordance with Section 4.7 of the Agreement.
Section 3.02. Redemption Dates. The redemption date of Bonds to be
redeemed pursuant to any optional redemption provision in the Bonds will be a
date permitted by the Bonds and specified by the Company in the notice delivered
pursuant to Section 4.7 of the Agreement. The redemption date for mandatory
redemptions will be as specified in the Bonds to be redeemed or determined by
the Trustee consistently with the provisions of the Bonds.
Section 3.03. Selection of Bonds to Be Redeemed. Except as provided in
the Bonds, if fewer than all the Bonds are to be redeemed, the Trustee will
select the Bonds to be redeemed by lot or other method it deems fair and
appropriate, except that the Trustee will first select any Bonds owned by the
Company or any of its nominees or held by the Trustee for the account of the
Company or any of its nominees. The Trustee will make the selection from Bonds
not previously called for redemption. For this purpose, the Trustee will
consider each Bond in a denomination larger than the minimum denomination
permitted by the Bonds at the time to be separate Bonds each in the minimum
denomination. Provisions of this Indenture that apply to Bonds called for
redemption also apply to portions of Bonds called for redemption.
Section 3.04. Redemption Notices.
(a) Official Notice of Redemption. The Trustee will give notice of each
redemption as provided in the Bonds and will at the same time give a copy of the
notice to the Remarketing Agent, provided that no redemption notice shall be
given with respect to a redemption under "Mandatory Redemption on Each Interest
Payment Date During Commercial Paper Mode" in Section 8 of the form of the
Bonds. The notice shall identify the Bonds to be redeemed and shall state (1)
the redemption date (and, if the Bonds provide that accrued interest will not be
paid on the redemption date, the date it will be paid), (2) the redemption
price, (3) that the Bonds called for redemption must be surrendered to collect
the redemption price, (4) the address at which the Bonds must be surrendered and
(5) that interest on the Bonds called for redemption ceases to accrue on the
redemption date.
With respect to an optional redemption of any Bonds under "Optional
Redemption at a Premium During Long-Term Interest Rate Period," "Extraordinary
Optional Redemption" or "Optional Redemption During Daily or Weekly Rate Period"
in Section 8 of the form of the Bonds, unless moneys sufficient to pay the
principal of, redemption premium, if any, and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the giving of such
notice of redemption, such notice may state that said redemption shall be
conditional upon the receipt of such moneys by the Trustee on or prior to the
date fixed for redemption. If such moneys are not received, such notice shall be
of no force and effect, the Issuer shall not redeem such Bonds, the redemption
price shall not be due and payable, and the Trustee shall give notice, in the
same manner in which the notice of redemption was given, that such moneys were
not so received and that such Bonds will not be redeemed.
Failure to give any required notice of redemption as to any particular
Bonds or any defect therein will not affect the validity of the call for
redemption of any Bonds in respect of which no such failure or defect has
occurred. Any notice mailed as provided in the Bonds shall be effective when
sent and will be conclusively presumed to have been given whether or not
actually received by any holder.
(b) Additional Notice of Redemption. In addition to the redemption
notice required above, if there is not a Book-Entry System in effect for the
Bonds, further notice (the "Additional Notice") shall be given by the Trustee as
set out below. No defect in the Additional Notice nor any failure to give all or
any portion of the Additional Notice shall in any manner defeat the
effectiveness of a call for redemption if notice is given as prescribed in
paragraph (a) above.
(1) Each Additional Notice of redemption shall contain the
information required in paragraph (a) above for an official notice of
redemption plus (i) the CUSIP numbers of all Bonds being redeemed; (ii)
the date of the Bonds as originally issued; (iii) the interest rate
determination method for, or the rate of interest borne by each Bond
being redeemed; (iv) the maturity date of each Bond being redeemed; and
(v) any other descriptive information needed to identify accurately the
Bonds being redeemed.
(2) Each Additional Notice of redemption shall be sent at
least 30 days before the redemption date by registered or certified
mail or overnight delivery service (or by such other means as the
Trustee may have established with the securities depository or
information service) to all registered securities depositories then in
the business of holding substantial amounts of obligations similar to
the Bonds (such depositories now being Depository Trust Company of New
York, New York, Midwest Securities Trust Company of Chicago, Illinois,
and Philadelphia Depository Trust Company of Philadelphia,
Pennsylvania) and to one or more national information services that
disseminate notices of redemption of obligations such as the Bonds.
The information required in any redemption notice (including an
Additional Notice) pursuant to this Section and the information required in any
notice pursuant to Section 2.02(c) may be combined in a single notice if it is
sent to Bondholders in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
Section 3.05. Payment of Bonds Called for Redemption. Upon surrender to
the Trustee, Bonds called for redemption shall be paid or purchased in lieu of
redemption as provided in this Article at the redemption price (including
premium, if any) stated in the notice, plus interest accrued to the redemption
date, or at a purchase price as provided in the form of Bond, except that
interest payable on Bonds bearing interest at a Daily Rate will be paid on the
fifth Business Day following the redemption date. Bonds called for redemption
and purchased pursuant to a tender before the redemption date will not be
redeemed but will be dealt with as provided below in this Article. Upon the
payment of the redemption price of the Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP number
identifying, by issue and maturity, the Bonds being redeemed with the proceeds
of such check or other transfer.
Section 3.06. Bonds Redeemed in Part. Subject to Article V, upon
surrender of a Bond redeemed or purchased in lieu of redemption in part, the
Trustee will authenticate for the holder a new Bond or Bonds in authorized
denominations equal in principal amount to the unredeemed or unpurchased portion
of the Bond surrendered.
Section 3.07. Purchase of Bonds in Lieu of Redemption. When Bonds are
called for redemption pursuant to the paragraphs captioned "Optional Redemption
at a Premium During Long-Term Interest Rate Period", "Mandatory Redemption at
Beginning of a New Long-Term Interest Rate Period" or "Mandatory Redemption Upon
a Change in the Method of Determining the Interest Rate on the Bonds" in Section
8 of the form of the Bonds, the Company may purchase some of or all the Bonds
called for redemption for a price equal to the otherwise applicable redemption
price, if it (or the Remarketing Agent) gives written notice to the Trustee by
5:00 p.m. New York City time on the day before the redemption date that it
wishes to purchase the Bonds the principal amount of which is specified in the
notice and furnishes the Trustee sufficient money in sufficient time for the
Trustee to make the purchase on the redemption date. The Trustee will purchase
Bonds called for redemption pursuant to the paragraph captioned "Mandatory
Redemption on Each Interest Payment Date During Commercial Paper Mode" unless
otherwise instructed in writing by the Company, or unless the Indenture
otherwise requires that they be redeemed and canceled, before the redemption
date. The Trustee will purchase the Bonds pursuant to this Section only as
provided in Section 4.02.
Section 3.08. Disposition of Purchased Bonds. (a) Bonds to be Remarketed.
Bonds purchased pursuant to tenders as provided in the form of Bonds or in lieu
of redemption as provided in the foregoing Section will be offered for sale by
the Remarketing Agent as provided in this Section except as follows:
(1) Bonds purchased pursuant to a tender after having been
called for redemption under a provision in the form of Bond that does
not provide the Company an option to purchase in lieu of redemption
will be canceled.
(2) Bonds called for redemption under "Mandatory Redemption
Upon a Change in the Method of Determining the Interest Rate on the
Bonds" in Section 8 of the form of Bond, which are tendered between the
date notice of redemption is given and the redemption date, may be
remarketed before the redemption date only if the buyer receives a copy
of the redemption notice from the Remarketing Agent.
(3) Bonds will not be offered for sale under this Section
during the continuance of an Event of Default under Section 8.01(a),
(b), (c) or (d). Bonds will be offered for sale under this Section
during an event which with the passage of time or the giving of notice
or both may become an Event of Default only in the sole discretion of
the Remarketing Agent.
(b) Remarketing Effort. Except to the extent the Company directs the
Remarketing Agent not to do so, the Remarketing Agent will offer for sale and
use reasonable efforts to sell all Bonds to be sold as provided in paragraph (a)
above and, when directed by the Company, any Bonds held by the Company. The sale
price of each Bond must be equal to the principal amount of each Bond plus
accrued interest, if any, to the purchase date. The Company may direct the
Remarketing Agent from time to time to cease and to resume sales efforts with
respect to some of or all the Bonds. The Remarketing Agent may buy as principal
any Bonds to be offered under this Section.
(c) Notices in Respect of Tenders. When the Trustee receives a notice
from a Bondholder (or a Beneficial Owner through its direct Participant) as
specified in Section 6 of the form of the Bond for the Bondholder (or a
Beneficial Owner through its direct Participant) to tender Bonds, the Trustee
will promptly notify the Remarketing Agent and the Company by facsimile
transmission or telephone, promptly confirmed in writing, of the receipt of such
notice, but in no event later than the following times:
(i) when the Bonds bear interest at a Daily Rate, no later than
11:30 a.m. (New York City time) on the same Business Day; and
(ii) when the Bonds bear interest at a Weekly Rate, no later than
11:15 a.m. (New York City time) on the Business Day next succeeding
receipt of such notice.
(d) Delivery of Remarketed Bonds.
(i) Except when a book-entry system of registration is in
effect, the Trustee shall hold all Bonds delivered pursuant to this Section in
trust for the benefit of the owners thereof until moneys representing the
purchase price of such Bonds shall have been delivered to or for the account of
or to the order of such Bondholders, and thereafter, if such Bonds are
remarketed, shall deliver replacement Bonds, prepared by the Trustee in
accordance with the directions of the Remarketing Agent and authenticated by the
Trustee, for any Bonds purchased in accordance with the written directions of
the Remarketing Agent to the Remarketing Agent for delivery to the purchasers
thereof.
(ii) The Remarketing Agent shall advise the Trustee and the
Company in writing or by facsimile transmission of the principal amount of Bonds
which have been remarketed, together with the denominations and registration
instructions (including taxpayer identification numbers) in accordance with the
following schedule (all times of which are New York City time):
CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION
DETERMINATION OR, IN CONNECTION TO BE FURNISHED
WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE
NEW METHOD OF INTEREST RATE
DETERMINATION
Commercial Paper Period 12:15 p.m. on the purchase date
Daily Rate Period 12:15 p.m. on the purchase date
Weekly Rate Period 12:15 p.m. on the purchase date
Long-Term Interest Rate Period 12:15 p.m. on the purchase date
(iii) The terms of any sale by the Remarketing Agent shall
provide for the authorization of the payment of the purchase price by
the Remarketing Agent to the Trustee in exchange for Bonds registered
in the name of the new Bondholder which shall be delivered by the
Trustee to the Remarketing Agent at or before 2:00 p.m. (New York City
time) on the purchase date if the purchase price has been received from
the Remarketing Agent by the time set forth in Section 3.08(e) on the
purchase date.
(e) Delivery of Proceeds of Sale. The Remarketing Agent shall deliver
directly to the Trustee an amount equal to the principal amount thereof plus
accrued interest, if any, of the Bonds which the Remarketing Agent has advised
the Trustee have been remarketed pursuant to Section 3.08(d)(ii) no later than
12:30 p.m. (New York City time) on the purchase date.
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds. The Issuer will cause the
proceeds of the initial sale of the Bonds to be deposited with the Trustee in a
segregated trust account. On a date or dates to be designated by the Company the
Trustee will disburse the proceeds of the initial sale of the Bonds and any
investment earnings thereon pro rata to the Refunded Bonds Trustees for deposit
in the bond fund created under each of the Prior Indentures, to be applied to
pay the redemption price of the Refunded Bonds upon call for redemption.
Pursuant to Section 3.1 of the Agreement, the Company has agreed to pay
to each of the Refunded Bonds Trustees the amount in excess of the proceeds of
the Bonds needed to pay the redemption price of the Refunded Bonds.
Section 4.02. Payment of Bonds. The Trustee will make payments of
principal of, premium, if any, and interest on the Bonds from moneys available
to the Trustee under this Indenture for that purpose. The Trustee will pay the
purchase price of tendered Bonds first from the proceeds of the remarketing of
Bonds under Section 3.08 and second from other moneys available to the Trustee
for that purpose.
All moneys received as proceeds of remarketing the Bonds under Section
3.08 shall be held segregated by the Trustee in a separate and segregated trust
account. To the extent that the payment of principal or interest on the Bonds is
made from moneys as described in this Section, such payment shall also satisfy
and discharge any payment obligation of the Company under the Note and the
Trustee shall promptly notify the Company and the Mortgage Trustee in writing if
such payment requirement has not been satisfied. If any Bond is redeemed prior
to maturity or if the Company surrenders any Bond to the Trustee for
cancellation, the Trustee shall cancel such Bond.
Section 4.03. Investments of Moneys. The Trustee will invest and reinvest
moneys held by the Trustee as directed by the Company in writing, in:
(a) Government Obligations;
(b) Bonds and notes of the Federal Land Bank;
(c) Obligations of the Federal Intermediate Credit Bank;
(d) Obligations of the Federal Bank for Cooperatives;
(e) Bonds and notes of Federal Home Loan Banks;
(f) Negotiable or non-negotiable certificates of deposit, time deposits
or similar banking arrangements, issued by a bank or trust company (which may be
the commercial banking department of the Trustee or any bank or trust company
under common control with the Trustee) or savings and loan association which are
insured by the Federal Deposit Insurance Corporation or secured as to principal
by Government Obligations; or
(g) Other investments then permitted by law.
The Trustee may make investments permitted by this Article through its
own bond department or the bond department of any bank or trust company under
common control with the Trustee. The Trustee, when authorized by the Company,
may trade with itself in the purchase and sale of securities for such
investment. Investments will be registered in the name of the Trustee and held
by or under the control of the Trustee. The Trustee will sell and reduce to cash
a sufficient amount of investments whenever the cash held by the Trustee is
insufficient. The Trustee shall not be liable for any loss from such investments
to the extent directed by the Company.
Section 4.04. Moneys Held in Trust; Unclaimed Funds. The Trustee shall
deposit into a separate and segregated trust account for the benefit of the
Bondholders all moneys received by it for any payment on the Bonds. The proceeds
of the initial sale of the Bonds shall be held in a separate and segregated
trust account by the Trustee until disbursed as described in Section 4.01. Money
received by the Remarketing Agent or the Trustee from the sale of a Bond under
Section 3.08 or for the purchase of a Bond will be held segregated from other
funds of the Remarketing Agent or the Trustee in trust for the benefit of the
person from whom such Bond was purchased or the person delivering such purchase
money, as the case may be, and will not be invested. The Trustee shall promptly,
but in no event later than 30 days of their original deposit, apply moneys
received from the Company in accordance with this Indenture and as directed in
writing by the Company.
Notwithstanding the provisions of the immediately preceding paragraph,
any moneys which shall be set aside by the Trustee or deposited by the Trustee
with the paying agents and which shall remain unclaimed by the holders of such
Bonds for a period of six (6) years after the date on which such Bonds shall
have become due and payable shall upon request in writing be paid to the Company
or to such officer, board or body as may then be entitled by law to receive the
same, and thereafter the holders of such Bonds shall look only to the Company or
to such officer, board or body, as the case may be, for payment and then only to
the extent of the amount so received without any interest thereon, and the
Trustee, the Issuer and the paying agents shall have no responsibility with
respect to such moneys.
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System. The Bonds shall be initially issued in
the name of Cede & Co., as nominee for The Depository Trust Company as the
initial Securities Depository and registered owner of such Bonds, and held in
the custody of the Securities Depository. A single certificate will be issued
and delivered to the Securities Depository, or a custodian thereof, for the
Bonds. The Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as the Securities Depository
shall continue to serve as securities depository for such Bonds as provided
herein, all transfers of beneficial ownership interests will be made by
book-entry only on the records of the Securities Depository, and no investor or
other party purchasing, selling or otherwise transferring beneficial ownership
of such Bonds is to receive, hold or deliver any Bond certificate. The Issuer,
the Company and the Trustee will recognize the Securities Depository or its
nominee as the Bondholder of such Bonds for all purposes, including payment,
notices and voting.
The Issuer and the Trustee covenant and agree, so long as The
Depository Trust Company shall continue to serve as Securities Depository for
the Bonds, to meet the requirements of The Depository Trust Company with respect
to required notices and other provisions of the Letter of Representations among
The Depository Trust Company, the Issuer, the Trustee, the Company and the
Remarketing Agent, executed with respect to the Bonds.
The Issuer, the Trustee, the Company and the Remarketing Agent may
conclusively rely upon (i) a certificate of the Securities Depository as to the
identity of the Participants in the Book-Entry-System and (ii) a certificate of
any such Participant as to the identity of, and the respective principal amount
of Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial ownership
thereof is determined by a book-entry at the Securities Depository, the
requirements in this Indenture of holding, delivering or transferring Bonds
shall be deemed modified to require the appropriate person to meet the
requirements of the Securities Depository as to registering or registering the
transfer of the book-entry to produce the same effect. Any provision hereof
permitting or requiring delivery of Bonds shall, while the Bonds are in a
Book-Entry System, be satisfied by the notation on the books of the Securities
Depository in accordance with applicable law.
The Trustee and the Issuer, at the direction and expense of the Company
and with the consent of the Remarketing Agent, may from time to time appoint a
successor Securities Depository and enter into an agreement with such successor
Securities Depository to establish procedures with respect to the Bonds
consistent with current industry practice. Any successor Securities Depository
shall be a "clearing agency" registered under Section 17A of the Securities
Exchange Act of 1934, as amended.
None of the Issuer, the Company, the Trustee nor the Remarketing Agent
will have any responsibility or obligation to any Securities Depository, any
Participants in the Book-Entry System or the Beneficial Owners with respect to
(i) the accuracy of any records maintained by the Securities Depository or any
Participant; (ii) the payment by the Securities Depository or by any Participant
of any amount due to any Beneficial Owner in respect of the principal amount or
redemption or purchase price of, or interest on, any Bonds; (iii) the delivery
of any notice by the Securities Depository or any Participant; (iv) the
selection of the Beneficial Owners to receive payment in the event of any
partial redemption of the Bonds; or (v) any other action taken by the Securities
Depository or any Participant.
Bond certificates are required to be delivered to and registered in the
name of the Beneficial Owner, under the following circumstances:
(a) The Securities Depository determines to discontinue
providing its service with respect to the Bonds and no successor
Securities Depository is appointed as described above. Such a
determination may be made at any time by giving 30 days' notice to the
Issuer, the Company and the Trustee and discharging its
responsibilities with respect thereto under applicable law.
(b) The Company determines not to continue the Book-Entry System
through a Securities Depository.
The Trustee is hereby authorized to make such changes to the form of
bond attached hereto as Exhibit A which are necessary or appropriate to
reflect that the Book-Entry System is not in effect, that a successor
Securities Depository has been appointed or that an additional or
co-paying agent or tender agent has been designated pursuant to Section
13.03 hereof.
If at any time, the Securities Depository ceases to hold the Bonds all
references herein to the Securities Depository shall be of no further force or
effect.
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds. The Issuer will promptly pay the
principal of, premium, if any, and interest on, and other amounts due with
respect to, the Bonds on the dates and in the manner provided in the Bonds, but
only from the amounts assigned to and held by the Trustee under this Indenture.
Neither the State of Florida, nor any political subdivision thereof (including
Escambia County) shall be obligated to pay the principal of the Bonds, or the
premium, if any, or interest thereon or other costs incidental thereto, the same
being payable solely from the revenues and receipts hereinabove referred to.
The Bonds do not pledge the faith, credit or taxing power of the State
of Florida or any political subdivision thereof, including the County, but shall
be limited and special obligations payable solely from the proceeds derived by
the Issuer under the Agreement and the Note, and neither the Issuer nor the
State of Florida, nor any political subdivision thereof, shall ever be required
to (i) levy ad valorem taxes on any property within its territorial limits to
pay the principal of and premium, if any, and interest on the Bonds or to make
any other payments provided for hereunder or under the Agreement or the Note for
the Bonds, or (ii) pay the same from any funds of the Issuer other than those
derived by the Issuer under the Agreement or the Note, and such Bonds shall not
constitute a lien upon any property owned by or situated within the territorial
limits of the Issuer except the proceeds derived under the Agreement and the
Note.
Section 6.02. Performance of Covenants; Issuer. The Issuer covenants
that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond executed, authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The Issuer covenants that it is duly authorized
under the Constitution and laws of the State of Florida, including particularly
and without limitation the Act, to issue the Bonds authorized hereby and to
execute this Indenture, to assign and pledge the Note and the Agreement and the
amounts payable under the Note and to pledge the amounts hereby pledged in the
manner and to the extent herein set forth; that all action on its part necessary
for the issuance of the Bonds and the execution and delivery of this Indenture
has been duly and effectively taken; and that the Bonds in the hands of the
owners thereof are and will be valid and enforceable obligations of the Issuer
according to the terms thereof and hereof.
Section 6.03. Recording and Filing; Further Assurances. The Issuer will
execute and deliver such supplemental indentures and such further instruments,
and do such further acts, as the Trustee may reasonably require for the better
assuring, assigning and confirming to the Trustee the amounts assigned under
this Indenture for the payment of the Bonds. The Issuer further covenants that
it will not create or suffer to be created any lien, encumbrance or charge upon
its interest in the Note, the Deed of Trust or the Agreement, if any, except the
lien of this Indenture.
Section 6.04. Tax Covenants. The Issuer covenants that it shall not
knowingly take any action which would cause the Bonds to be treated as
"arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code
of 1986, as amended, and the proposed, temporary or final regulations thereunder
as such may be applicable to the Bonds or the proceeds derived from the sale of
the Bonds or any other moneys; provided, however, that no action taken by the
Issuer pursuant to and in accordance with the terms of the Agreement or this
Indenture shall give rise in any manner whatsoever to any claim against or
liability of the Issuer under this Indenture; and provided further, that any
such claims or liabilities shall in all events be subject to the indemnification
provisions of the Agreement.
Notwithstanding any provision of this Indenture to the contrary, the
Trustee shall not be liable or responsible for any calculation or determination
which may be required in connection with, or for the purpose of complying with,
Section 148 of the Code, or any successor statute or any regulation, ruling or
other judicial or administrative interpretation thereof, including, without
limitation, the calculation of amounts required to be paid to the United States
of America or the determination of the maximum amount which may be invested in
nonpurpose obligations having a yield higher than the yield on the Bonds, and
the Trustee shall not be liable or responsible for monitoring the compliance by
the Issuer or the Company with any of the requirements of Section 148 of the
Code or any applicable regulation, ruling or other judicial or administrative
interpretation thereof; it being acknowledged and agreed that the sole
obligation of the Trustee with respect to the investment of monies held under
any fund or account created hereunder shall be to invest such monies in
accordance with Section 4.03 hereof in each case pursuant to the instructions
received by the Trustee in accordance with Section 4.03 hereof.
Section 6.05. Rights Under Agreement. The Agreement, a duly executed
counterpart of which has been filed with the Trustee, sets forth the covenants
and obligations of the Issuer and the Company, and reference is hereby made to
the same for a detailed statement of said covenants and obligations of the
Company thereunder; and the Issuer agrees that the Trustee in its own name or in
the name of the Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Agreement for and on behalf of the
Bondholders, whether or not the Issuer is in default hereunder.
Section 6.06. Designation of Additional Paying Agents. The Issuer may
cause, with the consent of the Company, the necessary arrangements to be made
through the Trustee and to be thereafter continued for the designation of
additional paying agents and for providing for the payment of such of the Bonds
as shall be presented when due at the designated corporate trust office of the
Trustee, or its successor in trust hereunder, or at the designated principal
office of said additional paying agents. All such funds held by said additional
paying agents shall be held by each of them in trust and shall constitute a part
of the trust estate and shall be subject to the security interest created
hereby.
Section 6.07. Existence of Issuer. The Issuer covenants that it will at
all times maintain its legal existence and will duly procure any necessary
renewals and extensions thereof; will use its best efforts to maintain, preserve
and renew all the rights, powers, privileges and franchises owned by it; and
will comply with all valid acts, rules, regulations and orders of any
legislative, executive, judicial or administrative body applicable to the
Project.
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture. Any Bond will
be deemed paid for all purposes of this Indenture when (a) payment of the
principal of and interest on the Bond to the due date of such principal and
interest (whether at maturity, upon redemption or otherwise) or the payment of
the purchase price either (1) has been made in accordance with the terms of the
Bonds or (2) has been provided for by depositing with the Trustee in trust (A)
moneys in an amount which are sufficient to make such payment and/or (B)
Government Obligations maturing as to principal and interest in such amounts and
at such times as will insure, without any further reinvestment, the availability
of sufficient moneys to make such payment, and (b) all compensation and
reasonable expenses of the Trustee pertaining to each Bond in respect of which
such deposit is made have been paid or provided for to the Trustee's
satisfaction. When a Bond is deemed paid, it will no longer be secured by or
entitled to the benefits of this Indenture or be an obligation of the Issuer,
and shall be payable solely from the moneys or Government Obligations under
(a)(2) above, except that such Bond may be tendered if and as provided in the
Bonds and it may be registered as transferred, exchanged, registered, discharged
from registration or replaced as provided in Article II.
Notwithstanding the foregoing, upon the deposit of funds or Government
Obligations under clause (a)(2) of the first paragraph of this Section, the
purchase price of tendered Bonds shall be paid from the sale of Bonds under
Section 3.08. If payment of such purchase price is not made from the sale of
Bonds pursuant to Section 3.08, payment shall be made from funds (or Government
Obligations) on deposit pursuant to this Section without the need of any further
instruction or direction by the Company, in which case such Bonds shall be
surrendered to the Trustee and canceled.
Notwithstanding the foregoing, no deposit under clause (a)(2) of the
first paragraph of this Section shall be deemed a payment of a Bond until the
(1) Company has furnished the Trustee an Opinion of Tax Counsel to the effect
that the deposit of such cash or Government Obligations will not cause the Bonds
to become "arbitrage bonds" under Section 148 of the Code and (2) (a) notice of
redemption of the Bond is given in accordance with Article III or, if the Bond
is not to be redeemed or paid within the next 60 days, until the Company has
given the Trustee, in form satisfactory to the Trustee, irrevocable instructions
(i) to notify, as soon as practicable, the owner of the Bond, in accordance with
Article III, that the deposit required by (a)(2) above has been made with the
Trustee and that the Bond is deemed to be paid under this Article and stating
the maturity or redemption date upon which moneys are to be available for the
payment of the principal of the Bond, and premium, if any, and interest on such
Bond, if the Bond is to be redeemed rather than paid and (ii) to give notice of
redemption not less than 30 nor more than 60 days prior to the redemption date
for such Bond or (b) the maturity of the Bond.
When all outstanding Bonds are deemed paid under the foregoing
provisions of this Section, the Trustee will upon request acknowledge the
discharge of the lien of this Indenture, provided, however that the obligations
relating to the tender for purchase as provided in the Bonds and obligations
under Article II in respect of the registration of transfer, exchange,
registration, discharge from registration and replacement of Bonds shall survive
the discharge of the lien of the Indenture.
Section 7.02. Application of Trust Money. The Trustee shall hold in
trust money or Government Obligations deposited with it pursuant to the
preceding Section and shall apply the deposited money and the money from the
Government Obligations in accordance with this Indenture only to the payment of
principal of, premium, if any, and interest on the Bonds and to the payment of
the purchase price of tendered Bonds.
Section 7.03. Repayment to Company. Any excess money or securities held
by the Trustee at any time under this Article and any money held by the Trustee
under any provision of this Indenture for the payment of principal or interest
or for the purchase of Bonds that remains unclaimed for six years shall upon
request be promptly 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 7.04. Satisfaction of the Deed of Trust. At such time as all of
the outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of this Indenture, whichever shall first occur,
and the fees and expenses of the Trustee and any paying agents and all other
amounts payable by the Company under the Agreement and the Note shall have been
paid, the Trustee shall cause the execution and delivery to the Company of such
documents as shall be necessary to effect or evidence the satisfaction,
discharge and cancellation of the Deed of Trust.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default. An "Event of Default" is any of the
following:
(a) Default in the payment of any interest on any Bond when due
and as the same shall become due and payable, which default continues
for five days;
(b) Default in the due and punctual payment of principal on any
Bond when due and payable, whether at maturity, upon redemption, or by
declaration or otherwise;
(c) Default in the due and punctual payment of the purchase price
of any Bond required to be purchased in accordance with its terms; or
(d) An event of default has occurred and is continuing under the
Agreement.
Section 8.02. Acceleration. Upon the occurrence of an Event of Default
the Trustee may, and upon the written request of the holders of not less than
25% in aggregate principal amount of Bonds then outstanding shall, by notice in
writing delivered to the Issuer and the Company, declare the principal of all
Bonds then outstanding and the interest accrued thereon immediately due and
payable; and such principal and interest shall thereupon become and be
immediately due and payable.
If after the principal of the Bonds and the accrued interest thereon
have been so declared to be due and payable, all arrears of interest and
interest on overdue installments of interest (if lawful) and the principal and
premium, if any, on all Bonds then outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable under this
Indenture or upon the Bonds, except the principal of, and interest on, the Bonds
which by such declaration shall have become due and payable, are paid by the
Issuer, and the Issuer also performs all other things in respect of which it may
have been in default hereunder and pays the reasonable charges of the 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.
Section 8.03. Other Remedies. If an Event of Default occurs and is
continuing, subject to Section 8.06, the Trustee, before or after declaring the
principal of the Bonds and the interest accrued thereon immediately due and
payable, may, and upon request of the holders of at least 25% in principal
amount of the Bonds then outstanding shall, pursue any available remedy by
proceeding at law or in equity available to the Trustee under the Agreement, the
Note to collect the principal of or interest on the Bonds or to enforce the
performance of any provision of the Bonds, the Note, this Indenture, the Deed of
Trust or the Agreement.
The Trustee, as the assignee of all the right, title and interest of
the Issuer in and to the Agreement and the Note, may enforce each and every
right granted to the Issuer under the Agreement and the Note. In exercising such
rights and the rights given the Trustee under this Article VIII, the Trustee
shall take such action as, in the judgment of the Trustee applying the standards
described in Section 9.01(a) hereof, would best serve the interests of the
Bondholders.
Section 8.04. Legal Proceeding by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may, and upon the
written request of the holders of not less than 25% in principal amount of all
Bonds then outstanding and receipt of indemnity to its satisfaction shall, in
its own name:
(a) by mandamus, or other suit, action or proceeding at law or in equity,
enforce all rights of the Bondholders, including the right, subject to Section
12.10 hereof, to require the Issuer to enforce any rights under the Agreement
and to require the Issuer to carry out any other provisions of this Indenture
for the benefit of the Bondholder and to perform its duties under the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Issuer to account as if it were
the trustee of an express trust for the Bondholders; or
(d) by action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the rights of the Bondholders.
No remedy conferred upon or reserved to the Trustee or to the
Bondholders by the terms of this Indenture is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and shall be in
addition to any other remedy given to the Trustee or to the Bondholders
hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any
default or Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such default or Event of Default or acquiescence
therein; and every such right and power may be exercised from time to time as
often as may be deemed expedient.
No waiver of any default or Event of Default hereunder, whether by the
Trustee or by the Bondholders, shall extend to or shall affect any subsequent
default or event of default or shall impair any rights or remedies consequent
thereon.
Section 8.05. Appointment of Receivers. Upon the occurrence and
continuance of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the Trustee and of
the Bondholders under this Indenture, the Trustee shall be entitled as a matter
of right to the appointment of a receiver or receivers of the trust estate with
such powers as the court making such appointment shall confer.
Section 8.06. Waiver of Past Defaults. The holders of a majority in
principal amount of the Bonds then outstanding by notice to the Trustee may
waive an existing Event of Default and its consequences. When an Event of
Default is waived, it is cured and stops continuing, but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent to it.
Section 8.07. Control by Majority. The holders of a majority in
principal amount of the Bonds then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to
Section 9.01, that the Trustee determines is unduly prejudicial to the rights of
other Bondholders, or would involve the Trustee in personal liability.
Section 8.08. Limitation on Suits. A Bondholder may not pursue any
remedy with respect to this Indenture or the Bonds unless (a) the holder gives
the Trustee notice stating that an Event of Default is continuing, (b) the
holders of at least 25% in principal amount of the Bonds then outstanding make a
written request to the Trustee to pursue the remedy, (c) such holder or holders
offer to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense and (d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; it being
understood and intended that no one or more holders of the Bonds shall have any
right in any manner whatsoever to affect, disturb or prejudice the lien of this
Indenture by its, his or their action or to enforce any right hereunder except
in the manner herein provided, and that all proceedings at law or in equity
shall be instituted, had and maintained in the manner herein provided and for
the equal and ratable benefit of the holders of all Bonds then outstanding.
Nothing in the Indenture contained shall, however, affect or impair the right of
any Bondholder to enforce the payment of the principal of and premium, if any,
and interest on any Bond at and after the maturity thereof, or the obligation of
the Issuer to pay the principal of and premium, if any, and interest on each of
the Bonds issued hereunder to the respective holders thereof at the time and
place, from the source and in the manner in the Bonds expressed.
A Bondholder may not use this Indenture to prejudice the rights of
another Bondholder or to obtain a preference or priority over the other
Bondholders.
Section 8.09. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any holder to receive payment of
principal of and interest on a Bond, on or after the due dates expressed in the
Bond, or the purchase price of a Bond on or after the date for its purchase as
provided in the Bond, or to bring suit for the enforcement of any such payment
on or after such dates, shall not be impaired or affected without the consent of
the holder.
Section 8.10. Collection Suit by Trustee. If an Event of Default under
Section 8.01(a), (b) or (c) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount remaining unpaid.
Section 8.11. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Bondholders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the holders in any election of a trustee in bankruptcy or other person
performing similar functions. In the event of a bankruptcy or reorganization of
the Company, the Trustee may file a proof of claim on behalf of all Bondholders
with respect to the obligations of the Company pursuant to the Agreement and the
Note.
Section 8.12. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: To the Trustee for amounts to which it is entitled under Section
9.02.
SECOND: To Bondholders for amounts due and unpaid on the Bonds for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Bonds for principal and
interest, respectively.
THIRD: To the Issuer for any amounts due and unpaid to it by the Company
under the Agreement.
FOURTH: To the Company.
The Trustee may fix a payment date for any payment to the Bondholders.
Section 8.13. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Issuer) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a holder pursuant to Section 8.07 or a suit by
holders of more than 10% in principal amount of the Bonds then outstanding.
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts, but
only upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any Event of
Default and after the curing or waiver of all Events of Default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent corporate trustee would exercise or use under
the circumstances in the enforcement of a corporate indenture.
(b) The Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents,
receivers or employees selected by it with reasonable care and the
Trustee shall not be responsible for the conduct of such attorneys,
agents, receivers or employees, if selected with reasonable care, and
shall be entitled to advice of counsel concerning all matters relating
to the trusts hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such attorneys, agents, receivers
and employees as may reasonably be employed in connection with the
trusts hereof. The Trustee may act upon the opinion or advice of any
attorney (who may be the attorney or attorneys for the Issuer or the
Company), approved by the Trustee in the exercise of reasonable care.
The Trustee shall not be responsible for any loss or damage resulting
from any action or inaction in good faith in reliance upon such opinion
or advice.
(c) The Trustee shall not be responsible for any recital
herein, or in the Bonds (except in respect to the certificate of the
Trustee endorsed on the Bonds), or for the recording or re-recording,
filing or re-filing of this Indenture, or any other instrument required
by this Indenture to secure the Bonds, or for insuring the Project or
collecting any insurance moneys, or for validity of the execution by
the Issuer of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
hereby.
(d) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may become the
owner of Bonds secured hereby with the same rights which it would have
if not the Trustee. To the extent permitted by law, the Trustee may
also receive tenders and purchase in good faith Bonds from itself,
including any department, affiliate or subsidiary, with like effect as
if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the owner of any Bond,
shall be conclusive and binding upon all future owners of the same Bond
and upon owners of Bonds issued in exchange therefor or in place
thereof.
(f) As to the existence or non-existence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate signed by the
Issuer or the Company as sufficient evidence of the facts therein
contained; and prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (h) of this Section
9.01, or of which by said subsection it is deemed to have notice, the
Trustee shall also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is necessary
or expedient, but may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to secure
the same. The Trustee may accept a certificate of the Clerk or Deputy
Clerk of the Issuer under the Issuer's seal to the effect that a
resolution in the form therein set forth has been adopted by the Issuer
as conclusive evidence that such resolution has been duly adopted, and
is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and it
shall not be answerable for other than its negligence or willful
default.
(h) The Trustee shall not be required to take notice or be
deemed to have notice of any Event of Default hereunder except failure
by the Issuer to cause to be made any of the payments to the Trustee
required to be made by Article IV hereof, unless the Trustee shall be
specifically notified in writing of such Event of Default by the Issuer
or by the holders of at least 25% in aggregate principal amount of
Bonds then outstanding; and all notices or other instruments required
by this Indenture to be delivered to the Trustee must, in order to be
effective, be delivered at the principal corporate trust office of the
Trustee, and in the absence of such notice so delivered the Trustee may
conclusively assume there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right fully to inspect any and all parts
of the Project, including all books, papers and records of the Issuer
pertaining to the Project and the Bonds and to take such memoranda from
and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee shall have the right, but shall not be required,
to demand, in respect of the authentication of any Bonds, the
withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any showings,
certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee, which the
Trustee in its discretion may deem desirable for the purpose of
establishing the right of the Issuer to the authentication of any
Bonds, the withdrawal of any cash, or the taking of any other action by
the Trustee.
(l) Before taking any action referred to in Section 8.02,
8.03, 8.04, 8.05, 8.07, 8.08, 8.09, 8.10, 8.11 or 9.04 hereunder, the
Trustee may require that satisfactory indemnity be furnished for the
reimbursement of all expenses to which it may be put and to protect it
against all liability, except liability which is adjudicated to have
resulted from its negligence or willful default by reason of any action
so taken.
(m) All moneys received by the Trustee or any paying agent
shall, until used or applied or invested as herein provided, be held in
trust for the purposes for which they were received but need not be
segregated from other funds except to the extent required herein or by
law. Neither the Trustee nor any paying agent shall be under any
liability for interest on any moneys received hereunder except such as
may be mutually agreed upon.
(n) No provision of the Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
Section 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall
be entitled to payment and reimbursement for reasonable fees for its services
rendered hereunder and all advances, counsel fees (including counsel fees
incurred in any bankruptcy proceeding) and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with such services.
Upon an Event of Default, but only upon an Event of Default, the Trustee shall
have a first lien, with right of payment prior to payment on account of
principal of and premium, if any, and interest on any Bond, upon the trust
estate for the foregoing fees, charges and expenses incurred by it.
Section 9.03. Notice to Bondholders if an Event of Default Occurs. If
an Event of Default occurs of which the Trustee is by Section 9.01(h) hereof
required to take notice or if notice of an Event of Default be given as in
Section 9.01(h) provided, then the Trustee shall promptly give written notice
thereof by registered or certified mail to each owner of Bonds then outstanding.
Section 9.04. Intervention by Trustee. In any judicial proceeding to
which the Issuer is a party and which in the opinion of the Trustee and its
counsel has a substantial bearing on the interests of the owners of the Bonds,
the Trustee may intervene on behalf of the Bondholders and shall do so if
requested in writing by the owners of at least 25% of the aggregate principal
amount of Bonds then outstanding. The rights and obligations of the Trustee
under this Section 9.04 are subject to the approval of a court of competent
jurisdiction.
Section 9.05. Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate trust business
and assets as a whole or substantially as a whole or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor
Trustee hereunder and vested with all of the title to the trust estate and all
the trusts, powers, discretions, immunities, privileges and all other matters as
was its predecessor, without the execution or filing of any instrument or any
further act, deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.06. Resignation by Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by giving thirty
days' written notice to the Issuer and the Company, served personally or sent by
registered or certified mail, and to each owner of Bonds then outstanding, sent
by registered or certified mail, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a successor Trustee
pursuant to Section 9.08 hereof.
Section 9.07. Removal of Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer and the Company, and signed by the owners of a
majority in aggregate principal amount of Bonds then outstanding.
Section 9.08. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder,
or in case it shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor shall be appointed
by the Issuer at the direction of the Company. The Issuer shall cause notice of
such appointment to be given in the same manner as the giving of notices of
redemption as set forth in Section 3.04 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the owners of a majority
in aggregate principal amount of Bonds then outstanding. Every such successor
Trustee appointed pursuant to the provisions of this Section 9.08 shall be a
trust company or bank in good standing having a reported capital, surplus and
undivided profits of not less than $25,000,000, if there be such an institution
willing, qualified and able to accept the trusts upon reasonable and customary
terms.
Section 9.09. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all of the estates, properties,
rights, powers, trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Issuer, or of its
successor, execute and deliver an instrument transferring to such successor
Trustee all the estates, properties, rights, powers and trusts of such
predecessor hereunder, and every predecessor Trustee shall deliver all
securities and moneys held by it as Trustee hereunder to its successor. Should
any instrument in writing from the Issuer be required by any successor Trustee
for more fully and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the predecessor, any
and all such instruments in writing shall, on request, be executed, acknowledged
and delivered by the Issuer. The resignation of any Trustee and the instrument
or instruments removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article IX, shall be
filed and/or recorded by the successor Trustee in each recording office where
the Indenture shall have been filed and/or recorded and the successor Trustee
shall bear the cost thereof.
Section 9.10. Successor Trustee as Bond Registrar and Paying Agent. In
the event of a change of Trustee, the Trustee which has resigned or been removed
shall cease to be bond registrar and a paying agent for principal of and
premium, if any, and interest on the Bonds, and the successor Trustee shall
become such bond registrar and a paying agent.
Section 9.11. Trustee and Issuer Required to Accept Directions and
Actions of Company. Whenever, after a reasonable request by the Company, the
Issuer shall fail, refuse or neglect to give any direction to the Trustee or to
require the Trustee to take any action which the Issuer is required to have the
Trustee take pursuant to the provisions of the Agreement or this Indenture, the
Company 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 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
may to the extent permitted by law, perform any and all acts or take such action
as may be necessary for and on behalf of the Issuer to prevent or correct said
Event of Default and the Trustee shall take or accept such performance by the
Company as performance by the Issuer in such event.
The Issuer hereby makes, constitutes and appoints the Company
irrevocably as its agent to give all directions, do all things and perform all
acts provided, and to the extent so provided, by this Section 9.11.
Section 9.12. No Transfer of Note or the Deed of Trust Held by the
Trustee; Exception. Except as required to effect an assignment to a successor
Trustee, the Trustee shall not sell, assign or transfer the Note or the Deed of
Trust and the Trustee is authorized to enter into an agreement with the Company
to such effect.
Section 9.13. Filing of Certain Continuation Statements. From time to
time, the Trustee shall duly file, or cause to be filed, at the expense of the
Company, continuation statements for the purpose of continuing without lapse the
effectiveness of the filing of the financing statements with respect to the
security interest created by this Indenture in the Agreement and the Note, at or
prior to the issuance of the Bonds and any previously filed continuation
statements which shall have been filed as herein required. The Issuer shall sign
and deliver to the Trustee or its designee such continuation statements as may
be requested of it from time to time by the Trustee. Upon the filing of any such
continuation statements the Trustee shall immediately notify the Issuer and the
Company that the same has been accomplished.
Section 9.14 Duties of Remarketing Agent. The Remarketing Agent will
set the interest rates on the Bonds and perform the other duties provided for in
Section 2.02 and will remarket the Bonds as provided in Section 3.08, subject to
any provisions of a remarketing agreement between the Company and the
Remarketing Agent. The Remarketing Agent may for its own account or as broker or
agent for others deal in Bonds and may do anything any other Bondholder may do
to the same extent as if the Remarketing Agent were not serving as such.
Section 9.15 Eligibility of Remarketing Agent. The initial Remarketing
Agent appointed under this Indenture is SunTrust Bank, Atlanta. The Remarketing
Agent will be a bank, trust company or member of the National Association of
Securities Dealers, Inc. organized and doing business under the laws of the
United States or any state or the District of Columbia, will have a combined
capital stock, surplus and undivided profits of at least $15,000,000 as shown in
its most recent published annual report, will be a Participant in the Securities
Depository and will be authorized by law to perform all the duties imposed upon
it by this Indenture. Any successor Remarketing Agent shall be rated at least
Baa3/P-3 or otherwise qualified by Moody's Investors Service, Inc. or have an
equivalent rating of another rating agency.
Section 9.16 Replacement of Remarketing Agent. The Remarketing Agent
may resign by notifying the Issuer, Trustee and Company. Such resignation will
take effect on the day a successor Remarketing Agent appointed in accordance
with this Section has accepted the appointment or, if no successor has so
accepted, 30 days after notice of resignation has been sent. The Company may
remove the Remarketing Agent at any time by an instrument signed by the Company
and filed with the Remarketing Agent, the Issuer and the Trustee at least 30
days prior to the effective date of such removal (which will not in any event
occur prior to the appointment of a successor Remarketing Agent). A new
Remarketing Agent may be appointed by the Company upon the resignation or
removal of the Remarketing Agent. The Trustee shall promptly notify the
Bondholders of any change in the Remarketing Agent.
Section 9.17. Compensation of Remarketing Agent. The Remarketing Agent
will not be entitled to any compensation from the Issuer, the Trustee or any
property held under this Indenture but must make separate arrangements with the
Company for compensation.
Section 9.18. Successor Remarketing Agent. If the Remarketing Agent
consolidates with, merges or converts into, or transfers all or substantially
all its assets (or, in the case of a bank or trust company, its corporate trust
assets) to another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Remarketing Agent,
provided that such successor shall be eligible under the applicable provisions
in this Article.
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders. The Issuer and the Trustee
may amend or supplement this Indenture or the Bonds without notice to or consent
of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal defect or
omission,
(b) to grant to the Trustee for the benefit of the Bondholders
additional rights, remedies, powers or authority,
(c) to subject to this Indenture additional collateral or to add
other agreements of the Issuer,
(d) to modify this Indenture or the Bonds to permit qualification
under the Trust Indenture Act of 1939, as amended, or any similar
federal statute at the time in effect, or to permit the qualification
of the Bonds for sale under the securities laws of any state of the
United States,
(e) to authorize different authorized denominations of the Bonds
and to make correlative amendments and modifications to this Indenture
regarding exchangeability of Bonds of different authorized
denominations, redemptions of portions of Bonds of particular
authorized denominations and similar amendments and modifications of a
technical nature,
(f) to increase or decrease the number of days specified for the
giving of notices in Section 2.02 and to make corresponding changes to
the period for notice of redemption of the Bonds; provided that no
decreases in any such number of days shall become effective except
while the Bonds bear interest at a Daily Rate or a Weekly Rate and
until 30 days after the Trustee has given notice to the owners of the
Bonds,
(g) to provide for an uncertificated system of registering the
Bonds or to provide for the change to or from a Book-Entry System for
the Bonds,
(h) to evidence the succession of a new Trustee or the
appointment by the Trustee or the Issuer of a co-trustee, or
(i) to make any change (including a change in Section 4.01 to
reflect any amendment to the Code or interpretations by the Internal
Revenue Service of the Code) that does not materially adversely affect
the rights of any Bondholder.
Section 10.02. With Consent of Bondholders. If an amendment of or
supplement to this Indenture or the Bonds without any consent of Bondholders is
not permitted by the preceding Section, the Issuer and the Trustee may enter
into such amendment or supplement without prior notice to any Bondholders but
with the consent of the holders of at least a majority in aggregate principal
amount of the Bonds then outstanding. However, without the consent of each
Bondholder affected, no amendment or supplement may (a) extend the maturity of
the principal of, or interest on, any Bond, (b) reduce the principal amount of,
or rate of interest on, any Bond, (c) effect a privilege or priority of any Bond
or Bonds over any other Bond or Bonds, (d) reduce the percentage of the
principal amount of the Bonds required for consent to such amendment or
supplement, (e) impair the exclusion from federal gross income of interest on
any Bond, (f) eliminate the holders' rights to tender the Bonds, or any
mandatory redemption of the Bonds, extend the due date for the purchase of Bonds
tendered by the holders thereof or call for mandatory redemption or reduce the
purchase or redemption price of such Bonds, (g) create a lien ranking prior to
or on a parity with the lien of this Indenture on the property described in the
Granting Clause of this Indenture or (h) deprive any Bondholder of the lien
created by this Indenture on such property. In addition, if moneys or Government
Obligations have been deposited or set aside with the Trustee pursuant to
Article VII for the payment of Bonds and those Bonds shall not have in fact been
actually paid in full, no amendment to the provisions of that Article shall be
made without the consent of the holder of each of those Bonds affected.
Section 10.03. Effect of Consents. Any consent received pursuant to
Section 10.02 will bind each Bondholder delivering such consent and each
subsequent holder of a Bond or portion of a Bond evidencing the same debt as the
consenting holder's Bond.
Section 10.04. Notation on or Exchange of Bonds. If an amendment or
supplement changes the terms of a Bond, the Trustee may require the holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Bond about the changed terms and return it to the holder. Alternatively, if the
Trustee, the Issuer and the Company determine, the Issuer in exchange for the
Bond will issue and the Trustee will authenticate a new Bond that reflects the
changed terms.
Section 10.05. Signing by Trustee of Amendments and Supplements. The
Trustee will sign any amendment or supplement to the Indenture or the Bonds
authorized by this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing an amendment or supplement,
the Trustee will be entitled to receive and (subject to Section 9.01) will be
fully protected in relying on an Opinion of Counsel stating that such amendment
or supplement is authorized by this Indenture.
Section 10.06. Company Consent Required. An amendment or supplement to this
Indenture or the Bonds shall not become effective unless the Company delivers to
the Trustee its written consent to the amendment or supplement.
Section 10.07. Notice to Bondholders. The Trustee shall cause notice of
the execution of each supplement or amendment to this Indenture or the Agreement
to be mailed to the Bondholders. The notice will at the option of the Trustee,
either (i) briefly state the nature of the amendment or supplement and that
copies of it are on file with the Trustee for inspection by Bondholders or (ii)
enclose a copy of such amendment or supplement.
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
Section 11.01. Without Consent of Bondholders. The Issuer may enter
into, and the Trustee may consent to, any amendment of or supplement to the
Agreement or the Note, or may waive compliance by the Company of any provision
of the Agreement or the Note, in each case without notice to or consent of any
Bondholder, if the amendment, supplement or waiver is required or permitted (a)
by the provisions of the Agreement or this Indenture, (b) to cure any ambiguity,
inconsistency or formal defect or omission, (c) to identify more precisely the
Project, (d) in connection with any authorized amendment of or supplement to
this Indenture or (e) to make any change that in the judgment of the Trustee
does not materially adversely affect the rights of any Bondholder.
Section 11.02. With Consent of Bondholders. If an amendment of or
supplement to the Agreement or the Note without any consent of Bondholders is
not permitted by the foregoing Section, the Issuer may enter into, and/or the
Trustee may consent to (as the case may be), such amendment or supplement, or
may waive compliance by the Company of any provision of the Agreement, without
notice to any Bondholder but with the consent of the holders of at least a
majority in aggregate principal amount of the Bonds then outstanding. However,
without the consent of each Bondholder affected thereby, no amendment,
supplement or waiver may result in anything described in the lettered clauses of
Section 10.02.
Section 11.03. Consents by Trustee to Amendments or Supplements. The
Trustee will consent to any amendment or supplement to the Agreement or the Note
authorized by this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing a consent to an amendment or
supplement, the Trustee shall be entitled to receive and (subject to Section
9.01) shall be fully protected in relying on an Opinion of Counsel stating that
such amendment or supplement is authorized or permitted by this Indenture.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Notices. (a) Any notice, request, direction, designation,
consent, acknowledgment, certification, appointment, waiver or other
communication required or permitted by this Indenture or the Bonds must be in
writing except as expressly provided otherwise in this Indenture or the Bonds.
(b) Any notice or other communication shall be sufficiently given and
deemed given when delivered by hand or mailed by first-class mail, postage
prepaid, addressed as follows: if to the Issuer, to the Chairman of the Board of
Commissioners, 223 Palafox Place, Pensacola, Florida 32597; if to the Trustee,
to First Union National Bank, at 225 Water Street, 3rd Floor, Jacksonville,
Florida 32202, Attention: Corporate Trust Department; if to the Company, at 500
Bayfront Parkway, Pensacola, Florida 32501, Attention: Treasurer, with copies to
Southern Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia
30303, Attention: Corporate Finance Department; and if to the Remarketing Agent,
to SunTrust Bank, Atlanta, 303 Peachtree Street, 23rd Floor, Atlanta, Georgia
30308, Attention: Municipal Desk. Any addressee may designate additional or
different addresses for purposes of this Section.
Section 12.02. Bondholders' Consents. Any consent or other instrument
required by this Indenture to be signed by Bondholders may be in any number of
concurrent documents and may be signed by a Bondholder or by the holder's agent
appointed in writing. Proof of the execution of such instrument or of the
instrument appointing an agent and of the ownership of Bonds, if made in the
following manner, shall be conclusive for any purposes of this Indenture with
regard to any action taken by the Trustee under the instrument:
(a) The fact and date of a person's signing an instrument may
be proved by the certificate of any officer in any jurisdiction who by
law has power to take acknowledgments within that jurisdiction that the
person signing the writing acknowledged before the officer the
execution of the writing, or by an affidavit of any witness to the
signing.
(b) The fact of ownership of Bonds, the amount or amounts,
numbers and other identification of such Bonds and the date of holding
shall be proved by the registration books kept pursuant to this
Indenture.
In determining whether the holders of the required principal amount of
Bonds outstanding have taken any action under this Indenture, Bonds owned by the
Company or any person controlling, controlled by or under common control with
the Company shall be disregarded and deemed not to be outstanding. In
determining whether the Trustee shall be protected in relying on any such
action, only Bonds which the Trustee knows to be so owned shall be disregarded.
Any consent or other instrument shall be irrevocable and shall bind any
subsequent owner of such Bond or any Bond delivered in substitution therefor.
Section 12.03. Appointment of Separate Paying Agent and/or Tender
Agent. If, at any time, the Securities Depository ceases to hold the Bonds, with
the effect that the Bonds are no longer subject to the Book-Entry System, then
the Issuer and the Trustee, acting at the request of the Company, may appoint
one or more banks or trust companies to act as paying agent and/or tender agent
for the Bonds hereunder. Any such paying agent or tender agent shall be a bank
or trust company organized under the laws of the United States of America or any
state thereof, shall have a reported capital and surplus of at least
$100,000,000 and a corporate trust office located in New York, New York at which
Bonds may be presented for payment or purchase and shall perform such duties and
responsibilities as may be delegated to it hereunder. If such a paying agent or
tender agent is appointed, then all references herein to the "Trustee" shall
include such paying agent or tender agent to the extent of the duties performed
by such entity.
Section 12.04. Limitation of Rights. Nothing expressed or implied in
this Indenture or the Bonds shall give any person other than the Trustee,
Issuer, Company, Remarketing Agent and the Bondholders any right, remedy or
claim under or with respect to this Indenture.
Section 12.05. Severability. If any provision of this Indenture shall
be held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative or unenforceable to any
extent whatsoever.
Section 12.06. Payments Due on Non-Business Days. If a payment date is
not a Business Day at the place of payment, then payment may be made at that
place on the next Business Day, and no interest shall accrue for the intervening
period.
Section 12.07. Governing Law. This Indenture shall be governed exclusively
by and construed in accordance with the applicable laws of the State.
Section 12.08. Captions. The captions in this Indenture are for convenience
only and do not define or limit the scope or intent of any provisions or
Sections of this Indenture.
Section 12.09. No Liability of Officers. No covenant or agreement
contained in the Bonds or this Indenture shall be deemed to be a covenant or
agreement of any commissioner, agent or employee of the Issuer in his individual
capacity, and neither the officers of the Issuer nor any official executing the
Bonds or this Indenture shall be liable personally on the Bonds or be subject to
any personal liability or accountability by reason of the issuance of the Bonds
or the execution, delivery and performance of this Indenture.
Section 12.10. Limitation upon Responsibility of the Issuer. (a)
Notwithstanding anything to the contrary contained herein or in any of the
Bonds, the Agreement or in any other instrument or document executed by or on
behalf of the Issuer in connection herewith, (i) the Issuer shall have no
obligation to take action under this Indenture, the Bonds, the Agreement or such
other instruments or documents, unless Issuer is reasonably requested in writing
by an appropriate person to take such action and is provided with indemnity and
assurances reasonably satisfactory to it of payment of or reimbursement for any
expenses (including attorneys' fees) in such action, and (ii) any judgment
rendered against the Issuer for breach of its obligations hereunder or under the
Bonds, the Agreement or such instruments or documents, shall be payable solely
from the revenues derived by the Issuer hereunder or under the Agreement or the
Note, and no personal liability or charge payable directly or indirectly from
the general funds of the Issuer shall arise therefrom.
(b) The Issuer shall not be required to incur any expense with respect
to the Project or the Bonds unless requested to do so by the Company, in which
event the Company hereby agrees to reimburse the full amount of such expense to
the Issuer, and the Issuer may require payment to it of such amount as a
prerequisite to its incurring any such expense.
(c) In acting under this Indenture, the Bonds, the Agreement, the Note
or such other instruments or documents, or in refraining from taking such
action, the Issuer may conclusively rely on the advice of its counsel.
Section 12.11 Counterparts. This Indenture may be signed in several
counterparts. Each will be an original, but all of them together constitute the
same instrument.
<PAGE>
IN WITNESS WHEREOF, Escambia County, Florida has caused these presents
to be signed in its name and behalf by the Chairman or Vice Chairman of its
Board of County Commissioners, and its official seal to be hereunto affixed and
attested by its Clerk or Deputy Clerk, and to evidence its acceptance of the
trusts hereby created First Union National 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.
[SEAL] ESCAMBIA COUNTY, FLORIDA
By:
Chairman of the Escambia County
Board of County Commissioners
Attest:
Clerk of the Escambia County
Board of County Commissioners
FIRST UNION NATIONAL BANK, as Trustee
[SEAL] By:
Title:
<PAGE>
Attachment A
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co. has an interest herein.
UNITED STATES OF AMERICA
STATE OF FLORIDA
No. R-1 $37,000,000
ESCAMBIA COUNTY, FLORIDA
POLLUTION CONTROL REVENUE REFUNDING BOND
(GULF POWER COMPANY PROJECT)
SERIES 1997
TYPE OF INTEREST
MATURITY DATE DATED DATE CUSIP RATE PERIOD
July 1, 2022 July 1, 1997 296130BV8 Daily
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: $37,000,000
Escambia County, Florida (the "Issuer"), a "local agency" as defined in
the Florida Industrial Development Financing Act, being Part II of Chapter 159,
Florida Statutes, Sections 159.25 through 159.431, and a political subdivision
of the State of Florida, for value received, hereby promises to pay, solely from
the sources described in this Bond, to the Registered Owner identified above, or
registered assigns, on the Maturity Date stated above (or if this Bond is called
for earlier redemption as described herein, on the redemption date) the
principal amount identified above and to pay interest as provided in this Bond.
1. Indenture; Agreement. This Bond is one of the bonds (the "Bonds"),
limited to $37,000,000 in principal amount, issued under the Trust Indenture
dated as of July 1, 1997 (the "Indenture"), between the Issuer and First Union
National Bank, as trustee (the "Trustee"). The terms of the Bonds include those
in the Indenture. Bondholders are referred to the Indenture for a statement of
those terms. When used with reference to the Bonds, the term "principal"
includes any premium payable on those Bonds. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Indenture.
The Issuer has entered into a Loan Agreement dated as of July 1, 1997
(the "Agreement") with Gulf Power Company, a corporation organized and existing
under the laws of the State of Maine and qualified and doing business as an
electric utility in the State of Florida (the "Company"). Under the provisions
of the Agreement, the Issuer has loaned the proceeds of the Bonds of this series
to the Company (the "Loan"). In order to evidence the Loan and the Company's
obligation to repay the same, the Company has executed and delivered its
non-negotiable promissory note (the "Note"). The Note provides for the repayment
by the Company of the Loan, including interest thereon, in installments
sufficient to pay the principal of, purchase price and premium, if any, and
interest on the Bonds as the same shall become due and payable, and the
Agreement further obligates the Company to pay the cost of operating,
maintaining and repairing the Project (as hereinafter defined). The Note
provides that the payments thereunder shall be paid directly to the Trustee as
assignee of the Issuer. The Issuer has assigned its rights to such payments
under the Agreement and the Note to the Trustee as security for the Bonds. The
proceeds of the Bonds will be used to refund certain outstanding revenue bonds
issued to refinance the interest of the Company in certain air and water
pollution control and sewage and solid waste disposal facilities (the "Project")
located at the Crist steam electric generating plant (the "Crist Plant") in
Escambia County, Florida and the Lansing Smith steam electric generating plant
in Bay County, Florida.
The Indenture, the Agreement and the Note may be amended, and
references to them include any amendments.
The Issuer has established a book-entry only system of registration for
the Bonds (the "Book-Entry System"). Except as specifically provided otherwise
in the Indenture, a Securities Depository (or its nominee) will be the
registered owner of this Bond. By acceptance of a confirmation of purchase,
delivery or transfer, the Beneficial Owner (if any) of this Bond shall be deemed
to have agreed to this arrangement. If the Securities Depository (or its
nominee) is the registered owner of this Bond, it shall be treated as the owner
of it for all purposes.
2. Source of Payments. The principal of, premium, if any, and interest
on the Bonds are limited special obligations of the Issuer and, as provided in
the Indenture, are payable solely and only from payments derived from the
Agreement, the Note and from any other moneys held by the Trustee under the
Indenture for such purpose. The Bonds are issued pursuant to and in full
compliance with the Constitution and laws of the State of Florida, particularly
Florida Industrial Development Financing Act, being Part II of Chapter 159,
Florida Statutes, Sections 159.25 through 159.431, as amended, and pursuant to
resolutions adopted by the Issuer on June 24, 1997, which resolutions authorize
the execution and delivery of the Agreement and the Indenture. The Bonds and the
interest thereon are limited special obligations of the Issuer and are payable
solely from the revenues and other amounts derived from the Agreement and the
Note and are secured as set forth in the Indenture. The Bonds and premium, if
any, and interest thereon shall not be deemed to constitute a debt or general
obligation or a pledge of the faith and credit of the State of Florida or any
political subdivision thereof, including the County of Escambia. Neither the
State of Florida nor any political subdivision thereof nor the Issuer shall be
obligated to pay the principal of the Bonds or premium, if any, or interest
thereon or other costs incident thereto except from the revenues and receipts
pledged therefor, and neither the faith and credit nor the taxing power of the
State of Florida or any political subdivision thereof is pledged to the payment
of the principal of the Bonds or premium, if any, or interest thereon or other
costs incident thereto. Payments under the Note sufficient for the prompt
payment when due of the principal of and premium, if any, and interest on the
Bonds are to be paid to the Trustee by the Company for the account of the Issuer
and deposited in a special trust account created by the Issuer and have been
duly pledged and assigned for that purpose. In addition, substantially all other
rights of the Issuer under the Agreement have also been assigned to the Trustee
to secure payment of the principal of and premium, if any, and interest on the
Bonds issued under the Indenture.
3. Interest Rate. Interest on this Bond will be paid at the lesser of
(a) a Daily Rate, a Weekly Rate, a Commercial Paper Rate or a Long-Term Interest
Rate as selected by the Company and as determined in accordance with the
Indenture and (b) 15%. Interest will initially be payable at a Daily Rate as set
forth in the Indenture. The Company may change the interest rate determination
method from time to time. A change in the method will result in mandatory
redemption or purchase of the Bonds (see "Redemptions" below). While there
exists an Event of Default under the Indenture, the interest rate on the Bonds
will be the rate on the Bonds on the day before the Event of Default occurred,
except that if interest on any Bond was then payable at a Commercial Paper Rate,
the interest rate for all Bonds then bearing interest at a Commercial Paper Rate
will be the highest Commercial Paper Rate then in effect for any Bond.
When interest is payable at a Daily, Weekly or Commercial Paper Rate,
it will be computed on the basis of the actual number of days elapsed over a
year of 365 days (366 in leap years), and when payable at a Long-Term Interest
Rate on the basis of a 360-day year of twelve 30-day months. Interest on overdue
principal and, to the extent lawful, on overdue premium and interest will be
payable at the rate on the Bonds on the day before the default occurred.
4. Interest Payment and Record Dates. Interest will accrue on the
unpaid portion of the principal of this Bond from the Dated Date stated above
and thereafter from the Interest Payment Date (as hereinafter defined) next
preceding the date of authentication hereof to which interest has been paid or
duly provided for, unless the date of authentication hereof is an Interest
Payment Date to which interest has been paid or duly provided for, in which case
from the date of authentication hereof, or unless no interest has been paid or
duly provided for on the Bonds of this series, in which case from said Dated
Date; provided, however, that if the date of authentication is between the
Record Date (as hereinafter defined) for any Interest Payment Date and such
Interest Payment Date, then interest will accrue from such Interest Payment Date
or, if the Company shall default in payment of the interest due on such Interest
Payment Date, then from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or if no interest has been paid or
duly provided for, then from said Dated Date. When interest is payable at the
rate in the first column below, interest accrued during the period (an "Interest
Period") shown in the second column will be paid on the date (an "Interest
Payment Date") in the third column to holders of record on the date (a "Record
Date") in the fourth column:
INTEREST INTEREST
RATE ACCRUAL PERIOD PAYMENT DATE RECORD DATE
Daily* Calendar month Fifth Business Day Last Business Day
of the next month of the month
Weekly* Calendar month First Business Day Last Business Day
of the next month before Interest
Payment Date
Commercial From 1 to 365 days Day after the last Last Business Day
Paper as determined for day of Commercial before Interest
each Bond pursuant to Paper Period Payment Date
Section 2.02(a)(3) of
the Indenture
("Commercial Paper
Period")
Long-Term** Six-month period or Next day (January 1 Fifteenth of the
portion thereof or July 1) month before the
ending the last day Interest Payment
of December or Date (December 15 or
June June 15)***
* If there shall be a change from a Daily Rate or a Weekly Rate on a day other
than the first day of a calendar month, the then current Interest Period
relating to such Daily Rate or Weekly Rate shall end on the day immediately
preceding the date on which the new interest rate on the Bonds shall become
effective, which date in the case of a change from a Weekly Rate, shall be the
Interest Payment Date for such Interest Period, for which the Record Date shall
be the immediately preceding Business Day; but in the case of a change from a
Daily Rate, the Interest Payment Date for such Interest Period shall be the
fifth Business Day after the last day of such Interest Period, for which the
Record Date shall be the last Business Day of such Interest Period. If such new
interest rate shall be a Daily Rate or a Weekly Rate, the first Interest Period
relating thereto shall begin on the effective date of such new interest rate and
end on the last day of the then current calendar month, for which the Interest
Payment Date and the Record Date shall be as prescribed in this Table.
** If there shall be a change from a Long-Term Interest Rate on a day other than
the day after the last day of the then current Long-Term Interest Rate Period,
or if there shall be an early termination of such Long-Term Interest Rate Period
and a new Long-Term Interest Rate shall be set, such Long-Term Interest Rate
Period shall end on the day immediately preceding the date on which the new
interest rate shall become effective, which date shall be the Interest Payment
Date for such Long-Term Interest Rate Period, for which the Record Date shall be
15 days prior to such Interest Payment Date or, if sooner, the first day of such
Long-Term Interest Rate Period. If such new interest rate shall be a Daily Rate
or a Weekly Rate, the first Interest Period relating thereto shall begin on the
effective date of such new interest rate and end on the last day of the then
current calendar month, for which the Interest Payment Date and the Record Date
shall be as prescribed in this Table.
*** If an Interest Payment Date occurs less than 15 days after the first day of
a Long-Term Interest Rate Period, the first day of such Long-Term Interest Rate
Period is the Record Date for such Interest Payment Date.
"Business Day" is defined in the Indenture. Payment of defaulted interest will
be made to holders of record as of the fifth-to-last Business Day before
payment.
5. Method of Payment. Holders must surrender Bonds to the Trustee to
collect principal at maturity or upon redemption. (See "Tenders" below for the
payment of purchase price of tendered Bonds.) Interest on Bonds bearing interest
at a Commercial Paper Rate is payable only upon presentation of such Bonds to
the Trustee. Interest on Bonds bearing interest at a Daily, Weekly or Long-Term
Interest Rate will be paid to the registered holder hereof as of the Record Date
by check mailed by first-class mail on the Interest Payment Date to such
holder's registered address. A holder of $1,000,000 or more in principal amount
of Bonds may be paid interest at a Daily, Weekly or Commercial Paper Rate by
wire transfer in immediately available funds to an account in the continental
United States if the holder makes a written request of the Trustee (in form
satisfactory to the Trustee) at least two Business Days before the Record Date
specifying the account address. The notice may provide that it will remain in
effect for later interest payments until changed or revoked by another written
notice. Principal and interest will be paid in money of the United States that
at the time of payment is legal tender for payment of public and private debts
or by checks or wire transfers payable in such money. If any payment on the
Bonds is due on a non-Business Day, it will be made on the next Business Day,
and no interest will accrue as a result.
6. Tenders. "Tender" means to require, or the act of requiring, the
Trustee to purchase a Bond at the holder's option under the provisions of this
Section 6 at 100% of the principal amount plus interest accrued to the date of
purchase. During a Daily Rate Period, if a Bond is tendered after the Record
Date and before the Interest Payment Date for that Interest Period, the Trustee
will pay (but only from funds available therefor as provided in the Indenture) a
purchase price of principal plus interest accruing after the last day of that
Interest Period. The holder will receive interest for that Interest Period by
check or wire transfer as described in Section 5 above.
Daily Rate Tender. When interest on the Bonds is payable at a Daily
Rate and a Book-Entry System is in effect, a Beneficial Owner (through its
direct Participant in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable written notice or an
irrevocable telephone notice, promptly confirmed in writing, to the Trustee (any
such telephone notice to be delivered to a trust officer of the Trustee) and an
irrevocable notice by telephone, telegraph or facsimile transmission to the
Remarketing Agent, in each case by 11:00 a.m., New York City time, on a Business
Day, stating the principal amount of the Bond (or portion of Bond) being
tendered, payment instructions for the purchase price and the Business Day
(which may be the date the notice is delivered) the Bond (or portion of Bond) is
to be purchased. The Beneficial Owner shall effect delivery of such Bonds by
causing such direct Participant to transfer its interest in the Bonds equal to
such Beneficial Owner's interest on the records of the Securities Depository to
the participant account of the Trustee with the Securities Depository. Any
notice received by the Trustee after 11:00 a.m., New York City time, shall be
deemed to have been given on the next Business Day.
When interest on the Bonds is payable at a Daily Rate and a Book-Entry
System is not in effect, a holder of a Bond may tender the Bond (or portion of
Bond) by delivering the notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the Bond to the Trustee
by 1:00 p.m., New York City time, on the date of purchase (see additional
requirements below).
Weekly Rate Tender. When interest on the Bonds is payable at a Weekly
Rate and a Book-Entry System is in effect, a Beneficial Owner (through its
direct Participant in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable written notice or an
irrevocable telephone notice, promptly confirmed in writing, to the Trustee (any
such telephone notice to be delivered to a trust officer of the Trustee) and an
irrevocable notice by telephone, telegraph or facsimile transmission to the
Remarketing Agent, in each case prior to 5:00 p.m., New York City time on a
Business Day stating the principal amount of the Bond (or portion of Bond) being
tendered, payment instructions for the purchase price, and the date, which must
be a Business Day at least seven days after the notice is delivered, on which
the Bond (or portion of Bond) is to be purchased. The Beneficial Owner shall
effect delivery of such Bonds by causing such direct Participant to transfer its
interest in the Bonds equal to such Beneficial Owner's interest on the records
of the Securities Depository to the participant account of the Trustee with the
Securities Depository.
When interest on the Bonds is payable at a Weekly Rate and a Book-Entry
System is not in effect, a holder of a Bond may tender the Bond (or portion of
Bond) by delivering the notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the Bond to the Trustee
by 1:00 p.m., New York City time, on the date of purchase (see additional
requirements below).
Payment of Purchase Price. The purchase price for a tendered Bond will
be paid in immediately available funds to the registered owner of the Bond by
the close of business on the date of purchase.
7. Delivery Address; Additional Delivery Requirements. Notices in respect
of tenders and Bonds tendered must be delivered to the Trustee as follows:
First Union National Bank
225 Water Street, 3rd Floor
Jacksonville, Florida 32202
Attention: Corporate Trust Department
Telephone: (904) 361-3174
Fax: (904) 361-7735
Notices in respect of tenders shall be delivered to the Remarketing
Agent as follows:
SunTrust Bank, Atlanta
303 Peachtree Street, 23rd Floor
Atlanta, Georgia 30308
Attention: Municipal Desk
Telephone: (404) 588-7981
Fax: (404) 724-3219
The delivery addresses or telephone numbers of the Trustee or the Remarketing
Agent may be changed by notice mailed by first class mail to the Bondholders at
their registered addresses.
All tendered Bonds must be accompanied by an instrument of transfer
satisfactory to the Trustee, executed in blank by the registered owner or his
duly authorized attorney, with the signature guaranteed by an eligible guarantor
institution.
Limitation on Tenders. No Bonds may be tendered while they bear
interest at a Commercial Paper Rate or a Long-Term Interest Rate.
Irrevocable Notice Deemed to be Tender of Bond; Undelivered Bonds. The
giving of notice by the registered owner of a Bond as provided in Section 6
constitutes the irrevocable tender for purchase of each Bond (or portion) with
respect to which such notice was given, irrespective of whether such Bond was
delivered as provided in Section 6. The determination of the Trustee as to
whether a notice of tender has been properly delivered shall be conclusive and
binding upon the Bondholders.
The Trustee may refuse to accept delivery of any Bond for which a
proper instrument of transfer has not been provided. If any owner of a Bond who
gave notice fails to deliver his Bond to the Trustee at the place and on the
applicable date and time specified, or fails to deliver his Bond properly
endorsed, his Bond shall constitute an undelivered Bond as described in the
Indenture. BY ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL AND SURRENDER
THIS BOND, PROPERLY ENDORSED, TO THE TRUSTEE AFTER THE GIVING OF IRREVOCABLE
NOTICE OF TENDER FOR PURCHASE AS DESCRIBED ABOVE.
8. Redemptions. As provided below, the Company has the right to
purchase Bonds in lieu of certain redemptions. BY ACCEPTANCE OF THIS BOND, THE
OWNER AGREES TO SELL AND SURRENDER THIS BOND, PROPERLY ENDORSED, TO THE COMPANY
IN LIEU OF REDEMPTION UNDER THE CONDITIONS DESCRIBED BELOW. All redemptions and
purchases in lieu of redemption will be made in funds immediately available on
the redemption or purchase date and will be at a redemption or purchase price of
100% of the principal amount of the Bonds being redeemed or purchased (unless a
premium is required as provided below) plus interest accrued to the redemption
or purchase date, except that interest accruing at a Daily Rate will be paid on
the fifth Business Day following the redemption or purchase date. Bonds tendered
for purchase on a date after a call for redemption but before the redemption
date will be purchased pursuant to the tender. No purchase of Bonds by the
Company or advance use of any funds to effectuate any such purchase shall be
deemed to be a payment or redemption of the Bonds or of any portion thereof and
such purchase will not operate to extinguish or discharge the indebtedness
evidenced by such Bonds.
Optional Redemption at a Premium During Long-Term Interest Rate Period.
During any Long-Term Interest Rate Period, if the Long-Term Interest Rate Period
is less than or equal to five years, the Bonds will not be redeemable pursuant
to this provision during the Long-Term Interest Rate Period.
If the Long-Term Interest Rate Period is greater than five years, the
Bonds will not be redeemable for five years after the date on which the Bonds
begin to bear interest at the Long-Term Interest Rate. After the five year
no-call period, the Bonds may be redeemed or purchased by the Company in lieu of
redemption at any time in whole or in part at 102% of their principal amount.
The premium will decline every year on the anniversary of the date on which the
Bonds begin to bear interest at the Long-Term Interest Rate, by one percentage
point until the Bonds are redeemable without premium.
As an alternative to and in lieu of the foregoing redemption
provisions, if, with respect to any Long-Term Interest Rate Period, a Favorable
Opinion of Tax Counsel is delivered to the Trustee not later than the date of
the establishment of such Long-Term Interest Rate Period, the Bonds may be
redeemed or purchased by the Company in lieu of redemption during such Long-Term
Interest Rate Period at the option of the Company in whole or in part at any
time after a no-call period, if any, established by the Remarketing Agent, at
the percentages of their principal amount, plus accrued interest, as follows:
the Remarketing Agent shall, given the duration of the Long-Term Interest Rate
Period, determine and inform the Trustee and the Company, on a date which is no
later than the establishment of the Long-Term Interest Rate, the periods during
which the Bonds shall not be subject to redemption or purchase by the Company in
lieu of redemption (the "Call Protection Period"), the premium or premiums
payable upon redemption or purchase by the Company in lieu of redemption (the
"Call Premiums"), if any, applicable to the redemption or purchase by the
Company in lieu of redemption of Bonds after the Call Protection Period, and the
period or periods during which the Call Premiums shall be effective (the "Call
Premium Periods") necessary to establish the Long-Term Interest Rate. Such Call
Protection Period, Call Premiums and Call Premium Periods shall be established
in accordance with optional call redemption provisions which, in the judgment of
the Remarketing Agent, are generally accepted as the standard features for
obligations such as the Bonds, given the length of the Long-Term Interest Rate
Period.
Extraordinary Optional Redemption. The Bonds are subject to redemption
in whole at any time upon receipt by the Trustee and the Issuer of a written
notice from the Company stating that the Company has determined that:
(i) Any federal, state or local body exercising governmental
or judicial authority has taken any action which results in the imposition of
unreasonable burdens or excessive liabilities with respect to the Project or the
Crist Plant, rendering impracticable or uneconomical the operation of either,
including, without limitation, the condemnation or taking by eminent domain of
all or substantially all of the Project or the Crist Plant; or
(ii) Changes in the economic availability of raw materials,
operating supplies or facilities or technological or other changes have made the
continued operation of the Crist Plant as an efficient generating facility
uneconomical; or
(iii) The Project or the Crist Plant has been damaged or
destroyed to such an extent that it is not practicable or desirable to rebuild,
repair or restore the Project or such Plant.
If the Issuer shall have received such notice by the Company, the
Issuer, upon request of the Company, shall give written notice to the Trustee
directing the Trustee to take all action necessary to redeem the outstanding
Bonds in whole and on a date specified in such notice, which date shall be not
less than forty-five (45) nor more than ninety (90) days from the date the
notice is received by the Trustee.
Optional Redemption During Daily or Weekly Rate Period. When interest
on the Bonds is payable at a Daily or Weekly Rate, the Bonds may be redeemed in
whole or in part at the option of the Company, on any Business Day.
Mandatory Redemption at Beginning of a New Long-Term Interest Rate
Period. When the Bonds bear interest at a Long-Term Interest Rate and a new
Long-Term Interest Rate is to be determined, the Bonds will be redeemed or
purchased by the Company in lieu of redemption on the effective date of the new
Long-Term Interest Rate. In the case of a change prior to the day originally
established as the day after the last day of a Long-Term Interest Rate Period,
the Bonds will be redeemed or purchased at the percentage of their principal
amount which would be payable upon the applicable redemption or purchase in lieu
thereof described under "Optional Redemption at a Premium During Long-Term
Interest Rate Period" above.
Mandatory Redemption on Each Interest Payment Date During Commercial
Paper Mode. When Bonds bear interest at a Commercial Paper Rate, each Bond will
be redeemed or purchased by the Company in lieu of redemption on the Interest
Payment Date for such Bond. If Bonds are scheduled to be redeemed under the
following paragraph, the Bonds will be called under, and redemption will be
governed by, that paragraph and not this paragraph.
Mandatory Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds. On the effective date of the change in the method of
determining the interest rate on the Bonds (the four methods being Daily,
Weekly, Commercial Paper or Long-Term Interest Rates) the Bonds will be redeemed
or purchased by the Company in lieu of redemption on the effective date of such
change. Any such redemption or purchase shall be at a price equal to 100% of the
principal amount of the Bonds, except that in the case of a change prior to the
day originally established as the day after the last day of a Long-Term Interest
Rate Period, the Bonds will be redeemed or purchased at the percentage of their
principal amount which would be payable upon the applicable redemption or
purchase in lieu thereof described under "Optional Redemption at a Premium
During Long-Term Interest Rate Period" above.
Notice of Redemption. At least 30 days before each redemption (except
"Mandatory Redemption on Each Interest Payment Date During Commercial Paper
Mode" described above, for which no notice will be given), the Trustee will mail
a notice of redemption by first-class mail to each Bondholder at the holder's
registered address. Failure to give any required notice of redemption as to any
particular Bonds, or any defect therein, will not affect the validity of the
call for redemption of any Bonds in respect of which no failure or defect
occurs. Any notice mailed as provided in this paragraph shall be effective when
sent and will be conclusively presumed to have been given whether or not
actually received by the addressee.
Effect of Notice of Redemption. When notice of redemption is required
and given, and when Bonds are to be redeemed without notice, Bonds called for
redemption become due and payable on the redemption date at the applicable
redemption price, subject to the Company's right to purchase Bonds as provided
above; in such case when funds are deposited with the Trustee sufficient for
redemption or for purchase, interest on the Bonds to be redeemed or purchased
ceases to accrue as of the date of redemption or purchase.
9. Denominations; Transfer; Exchange. The Bonds may be issued in
registered form without coupons in denominations as follows: (1) when interest
is payable at a Daily, Weekly or Commercial Paper Rate, $100,000 or any integral
multiple thereof; and (2) when interest is payable at a Long-Term Interest Rate,
$5,000 and integral multiples of $5,000 thereafter; provided, however, that if,
on the effective date of a change in the method of determining the interest rate
on the Bonds to a Long-Term Interest Rate for a Long-Term Interest Rate Period
or upon commencement of a new Long-Term Interest Rate Period, the Bonds do not
then have an investment-grade rating from a nationally recognized statistical
rating agency, then during such Long-Term Interest Rate Period, the Bonds may be
issued only in registered form without coupons in denominations of $100,000 or
any integral multiple thereof. A holder may register the transfer of or exchange
Bonds in accordance with the Indenture. The Trustee may require a holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture. Except in
connection with the purchase of Bonds tendered for purchase or purchased in lieu
of redemption, the Trustee will not be required to register the transfer of or
exchange any Bond which has been called for redemption or during the period
beginning 15 days before the mailing of notice calling the Bonds or any portion
of the Bonds for redemption and ending on the redemption date.
10. Persons Deemed Owners. The registered holder of this Bond shall be
treated as the owner of it for all purposes.
11. Funds in Trust; Unclaimed Funds. All moneys which the Trustee shall
have withdrawn from the account of the Company or shall have received from any
other source and set aside, or deposited with the paying agents, for the purpose
of paying any of the Bonds hereby secured, either at the maturity thereof or
upon call for redemption, shall be held in trust for the respective holders of
such Bonds. But any moneys which shall be so set aside or deposited by the
Trustee and which shall remain unclaimed by the holders of such Bonds for a
period of six (6) years after the date on which such Bonds shall have become due
and payable shall upon request in writing be paid to the Company or to such
officer, board or body as may then be entitled by law to receive the same, and
thereafter the holders of such Bonds shall look only to the Company or to such
officer, board or body, as the case may be, for payment and then only to the
extent of the amount so received without any interest thereon, and the Trustee,
the Issuer and the paying agents shall have no responsibility with respect to
such moneys.
12. Discharge Before Redemption or Maturity. If the Company at any time
deposits with the Trustee money or Government Obligations as described in the
Indenture sufficient to pay at redemption or maturity principal of and interest
on the outstanding Bonds, and if the Company also pays all other sums then
payable by the Company under the Indenture, the lien of the Indenture will be
discharged. After discharge, Bondholders must look only to the deposited money
and securities for payment. Government Obligations are securities backed by the
faith and credit of the United States or securities evidencing ownership
interest in such full-faith and credit securities.
13. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture, the Agreement or the Bonds may be amended or supplemented, and any
past default or compliance with any provision may be waived, with the consent of
the holders of a majority in principal amount of the Bonds then outstanding. Any
such consent shall be irrevocable and shall bind any subsequent owner of this
Bond or any Bond delivered in substitution for this Bond. Without the consent of
any Bondholder, the Issuer may amend or supplement the Indenture, the Agreement
or the Bonds as described in the Indenture, among other things, to cure any
ambiguity, omission, defect or inconsistency, to provide for uncertificated
Bonds in addition to or in place of certificated Bonds, to provide for a
Book-Entry System for the Bonds or to make any change that does not materially
adversely affect the rights of any Bondholder.
14. Defaults and Remedies. The Indenture provides that the occurrences
of certain events constitute Events of Default. If an Event of Default occurs
and is continuing, the Bonds may become or may be declared immediately due and
payable, as provided in the Indenture. An Event of Default and its consequences
may be waived as provided in the Indenture. Bondholders may not enforce the
Indenture or the Bonds except as provided in the Indenture. Except as
specifically provided in the Indenture, the Trustee may refuse to enforce the
Indenture or the Bonds unless it receives indemnity satisfactory to it. Subject
to certain limitations, holders of a majority in principal amount of the Bonds
then outstanding may direct the Trustee in its exercise of any trust or power.
15. No Recourse Against Others. A member, director, officer or
employee, as such, of the Issuer shall not have any liability for any
obligations of the Issuer or the Company under the Bonds or the Indenture or for
any claim based on such obligations or their creation. Each Bondholder by
accepting a Bond waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Bond.
16. Authentication. This Bond shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under the Indenture until
the certificate of authentication hereon shall have been duly executed by the
Trustee.
17. Abbreviations. Customary abbreviations may be used in the name of a
Bondholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A copy of the Indenture may be inspected at the corporate trust office
of the Trustee located at 225 Water Street, 3rd Floor, Jacksonville, Florida
32202.
<PAGE>
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions
and things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture and the issuance of this Bond do exist,
have happened and have been performed in due time, form and manner as required
by law.
IN WITNESS WHEREOF Escambia County, Florida has caused this Bond to be
executed in its name by the Chairman or Vice Chairman of its Board of County
Commissioners by his manual or facsimile signature and attested by the manual or
facsimile signature of its Clerk or Deputy Clerk and its corporate seal to be
hereunto affixed or printed hereon.
ESCAMBIA COUNTY, FLORIDA
By:
Chairman of the Escambia County
Board of County Commissioners
Attest:
Clerk of Escambia County
Board of County Commissioners
<PAGE>
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein and
issued under the provisions of the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
Date: _________________ By:
Authorized Signature
<PAGE>
The following abbreviations, when used in the inscription on the face of the
within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM- as tenants UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used though not in list above.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
______________________ attorney to transfer the said Bond on the books kept for
registration thereof with full power of substitution in the premises.
Dated:_____________________________
Signature guaranteed:
- ------------------------------
Medallion Number:_____________
*Signature(s) must be guaranteed by an NOTICE: The signatureto this
eligible guarantor institution which assignment must
is a member of a recognized signature correspond with the name of the
guarantee program, i.e. Securities registered owner as it appears upon
Transfer Agents Medallion Program the face of the within Bond in every
(STAMP), or New York Stock Exchange particular, without alteration or
Medallion Signature Program (MSP). enlargement or any change whatever.
Exhibit D
JACKSON COUNTY, FLORIDA
to
FIRST UNION NATIONAL BANK,
as Trustee
TRUST INDENTURE
Dated as of July 1, 1997
Relating to
$3,930,000
Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project)
Series 1997
<PAGE>
i
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS AND RULES OF CONSTRUCTION............................3
Section 1.01. Definitions..................................................3
Section 1.02. Rules of Construction........................................6
ARTICLE II: THE BONDS.......................................................7
Section 2.01. Issuance of Bonds; Form; Dating..............................7
Section 2.02. Interest on the Bonds........................................7
Section 2.03. Execution and Authentication................................13
Section 2.04. Bond Register...............................................14
Section 2.05. Registration and Exchange of Bonds; Persons Treated
as Owners...........14
Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds.....15
Section 2.07. Cancellation of Bonds.......................................15
Section 2.08. Temporary Bonds.............................................15
ARTICLE III: REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING....16
Section 3.01. Notices to Trustee..........................................16
Section 3.02. Redemption Dates............................................16
Section 3.03. Selection of Bonds to Be Redeemed...........................16
Section 3.04. Redemption Notices..........................................16
Section 3.05. Payment of Bonds Called for Redemption......................17
Section 3.06. Bonds Redeemed in Part......................................18
Section 3.07. Purchase of Bonds in Lieu of Redemption.....................18
Section 3.08. Disposition of Purchased Bonds..............................18
ARTICLE IV: APPLICATION OF PROCEEDS AND PAYMENT OF BONDS....................20
Section 4.01. Application of Proceeds.....................................20
Section 4.02. Payment of Bonds............................................20
Section 4.03. Investments of Moneys.......................................21
Section 4.04. Moneys Held in Trust; Unclaimed Funds.......................21
ARTICLE V: BOOK-ENTRY SYSTEM...............................................22
Section 5.01. Book-Entry System...........................................22
ARTICLE VI: COVENANTS......................................................24
Section 6.01. Payment of Bonds............................................24
Section 6.02. Performance of Covenants; Issuer............................24
Section 6.03. Recording and Filing; Further Assurances....................24
Section 6.04. Tax Covenants...............................................25
Section 6.05. Rights Under Agreement......................................25
Section 6.06. Designation of Additional Paying Agents.....................25
Section 6.07. Existence of Issuer.........................................26
ARTICLE VII: DISCHARGE OF INDENTURE........................................26
Section 7.01. Bonds Deemed Paid; Discharge of Indenture...................26
Section 7.02. Application of Trust Money..................................27
Section 7.03. Repayment to Company........................................27
Section 7.04. Satisfaction of the Deed of Trust...........................27
ARTICLE VIII: DEFAULTS AND REMEDIES........................................28
Section 8.01. Events of Default...........................................28
Section 8.02. Acceleration................................................28
Section 8.03. Other Remedies..............................................28
Section 8.04. Legal Proceeding by Trustee.................................29
Section 8.05. Appointment of Receivers....................................29
Section 8.06. Waiver of Past Defaults.....................................30
Section 8.07. Control by Majority.........................................30
Section 8.08. Limitation on Suits.........................................30
Section 8.09. Rights of Holders to Receive Payment........................30
Section 8.10. Collection Suit by Trustee..................................31
Section 8.11. Trustee May File Proofs of Claim............................31
Section 8.12. Priorities..................................................31
Section 8.13. Undertaking for Costs.......................................31
ARTICLE IX: TRUSTEE AND REMARKETING AGENT..................................32
Section 9.01. Acceptance of the Trusts....................................32
Section 9.02. Fees, Charges and Expenses of Trustee......................34
Section 9.03. Notice to Bondholders if an Event of Default Occurs........34
Section 9.04. Intervention by Trustee....................................34
Section 9.05. Successor Trustee..........................................35
Section 9.06. Resignation by Trustee.....................................35
Section 9.07. Removal of Trustee.........................................35
Section 9.08. Appointment of Successor Trustee...........................35
Section 9.09. Concerning Any Successor Trustee...........................35
Section 9.10. Successor Trustee as Bond Registrar and Paying Agent.......36
Section 9.11. Trustee and Issuer Required to Accept Directions and
Actions of Company.........................................36
Section 9.12. No Transfer of Note Held by the Trustee; Exception.........36
Section 9.13. Filing of Certain Continuation Statements..................37
Section 9.14 Duties of Remarketing Agent..................................37
Section 9.15 Eligibility of Remarketing Agent.............................37
Section 9.16 Replacement of Remarketing Agent.............................37
Section 9.17. Compensation of Remarketing Agent...........................38
Section 9.18. Successor Remarketing Agent.................................38
ARTICLE X: AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE.......................38
Section 10.01. Without Consent of Bondholders.............................38
Section 10.02. With Consent of Bondholders................................39
Section 10.03. Effect of Consents.........................................39
Section 10.04. Notation on or Exchange of Bonds...........................39
Section 10.05. Signing by Trustee of Amendments and Supplements...........40
Section 10.06. Company Consent Required...................................40
Section 10.07. Notice to Bondholders......................................40
ARTICLE XI AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT...................40
Section 11.01. Without Consent of Bondholders.............................40
Section 11.02. With Consent of Bondholders................................40
Section 11.03. Consents by Trustee to Amendments or Supplements...........41
ARTICLE XII MISCELLANEOUS..................................................41
Section 12.01. Notices....................................................41
Section 12.02. Bondholders' Consents......................................41
Section 12.03. Appointment of Separate Paying Agent and/or Tender Agent...42
Section 12.04. Limitation of Rights.......................................42
Section 12.05. Severability...............................................42
Section 12.06. Payments Due on Non-Business Days..........................42
Section 12.07. Governing Law..............................................43
Section 12.08. Captions...................................................43
Section 12.09. No Liability of Officers...................................43
Section 12.10. Limitation upon Responsibility of the Issuer...............43
Section 12.11. Counterparts...............................................43
<PAGE>
TRUST INDENTURE
THIS INDENTURE made and entered into as of July 1, 1997, by and between
JACKSON COUNTY, FLORIDA, a "local agency" as defined in the Florida Industrial
Development Financing Act, being Part II of Chapter 159, Florida Statutes,
Sections 159.25 through 159.431, as amended (the "Act"), and a political
subdivision of the State of Florida (the "Issuer"), and FIRST UNION NATIONAL
BANK, a national banking association duly organized, existing and authorized to
accept and execute trusts of the character herein set out under and by virtue of
the laws of the United States of America, as trustee (the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the Issuer has entered
into a Loan Agreement dated as of July 1, 1997 (the "Agreement") with Gulf Power
Company (the "Company") providing for the undertaking by the Issuer to loan
amounts to the Company in order to refund certain of the Issuer's bonds
heretofore issued to refinance the acquisition, construction, installation and
equipping of the Company's interest in certain air and water pollution control
and sewage and solid waste disposal facilities, or portions thereof, at Plant
Scholz in Jackson County, Florida.
B. The Agreement provides that, for the purposes therein set forth, the
Issuer will issue and sell its Pollution Control Revenue Refunding Bonds (Gulf
Power Company Project), Series 1997, in the aggregate principal amount of
$3,930,000 (the "Bonds"); that the Issuer will loan the proceeds of the Bonds to
the Company; and that to evidence the Loan (as hereinafter defined) the Company
will execute and deliver, concurrently with the issuance of the Bonds, a
non-negotiable promissory note in a like principal amount bearing interest at
the rate or rates borne by the Bonds.
C. The execution and delivery of this Indenture (as hereinafter
defined) and the Agreement and the issuance and sale of the Bonds have been in
all respects duly and validly authorized by resolution duly adopted by the
Issuer.
D. The Company has agreed to make payments on the aforementioned
promissory note to the Issuer in amounts sufficient to pay the principal,
purchase price, premium, if any, and interest on the Bonds, all as hereinafter
defined.
E. The Trustee has accepted the trusts created by this Indenture and in
evidence thereof has joined in the execution hereof.
Accordingly, the Issuer and the Trustee agree as follows for the
benefit of each other and for the benefit of the holders of the Bonds issued
pursuant to this Indenture.
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in consideration of the
premises, of the acceptance by the Trustee of the trusts hereby created, and the
purchase and acceptance of the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the Issuer in hand paid by the
Trustee at or before the execution and delivery of this Indenture, the receipt
of which is hereby acknowledged, and for the purpose of fixing and declaring the
terms and conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from time to time be or
become holders thereof, and in order to secure the payment of all Bonds at any
time issued and outstanding hereunder and the interest and the premiums, if any,
payable upon redemption or purchase in lieu of redemption 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, and will cause
the Company to deliver to the Trustee the Deed of Trust (as hereinafter defined)
and the Company's promissory note dated the date of the initial issuance of the
Bonds; 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 the Deed of Trust and such promissory
note and all payments, if any, made and to be made thereunder as security for
the payment of all outstanding Bonds and the interest and the premium, if any,
thereon and does hereby bargain, sell, convey, assign and pledge to the Trustee,
and grant to the Trustee a security interest in, all other rights, title and
interests of the Issuer in, to and under the Agreement and all moneys receivable
thereunder (except for Unassigned Rights, as defined herein) as security for the
satisfaction of any other obligation assumed by it in connection with all
outstanding Bonds at any time issued hereunder;
TO HAVE AND TO HOLD the same unto the Trustee and its successors in trust
forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for
the equal and proportionate benefit and security of all and singular present and
future holders of the Bonds issued under this Indenture, without preference,
priority or distinction as to lien or otherwise, except as otherwise hereinafter
provided, of any one Bond over any other Bond, by reason of priority in the
issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns shall
pay or cause to be paid the principal of, premium, if any, and interest on the
Bonds due or to become due thereon, at the times and in the manner mentioned in
the Bonds, and shall perform all the covenants and conditions required of it by
this Indenture, and shall pay or cause to be paid to the Trustee and any
additional paying agents all sums of money due or to become due to them in
accordance with the terms and provisions hereof, then upon such final payments
this Indenture and the rights hereby granted shall terminate and the Trustee
shall release this Indenture and shall execute such documents to evidence such
termination and release as may be reasonably required by the Issuer; otherwise
this Indenture to be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds from time to time issued and secured hereunder are to be issued,
authenticated and delivered, and all said property, rights and interests,
including, without limitation, the amounts hereby assigned and pledged, are to
be dealt with and disposed of subject to the terms of this Indenture, and the
Issuer agrees with the Trustee and with the respective owners, from time to
time, of said Bonds, or part thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. For all purposes of this Indenture, unless the
context requires otherwise, the following terms shall have the following
meanings:
"Act" means the Florida Industrial Development Financing Act, being
Part II of Chapter 159, Florida Statutes, Sections 159.25 through 159.431, as
amended.
"Agreement" means the Loan Agreement dated as of July 1, 1997, between
the Issuer and the Company, as amended and supplemented from time to time.
"Beneficial Owner" means the purchaser of a beneficial interest in the
Bonds when the Bonds are held by the Securities Depository in the Book-Entry
System, and otherwise means a Bondholder.
"Bondholder" or "holder" means the registered owner of any Bond.
"Bonds" means the Pollution Control Revenue Refunding Bonds (Gulf Power
Company Project), Series 1997 issued by the Issuer hereunder in the aggregate
principal amount of $3,930,000.
"Book-Entry System" means the system maintained by the Securities
Depository described in Section 5.01.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which commercial banks in New York, New York, Jacksonville, Florida,
Atlanta, Georgia, or the city in which the designated corporate trust office of
the Trustee is located, are authorized by law to close or (iii) a day on which
the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury regulations thereunder.
"Commercial Paper Mode" means each period of time, comprised of
Commercial Paper Periods, during which Commercial Paper Rates are in effect.
"Commercial Paper Period" means, with respect to any Bond, each period
set under Section 2.02(a)(3).
"Commercial Paper Rate" means the interest rate on each Bond set under
Section 2.02(a)(3).
"Company" means Gulf Power Company, a Maine corporation, and its
successors and assigns, and any surviving, resulting or transferee entity as
provided in Section 4.3 of the Agreement.
"Daily Rate" means an interest rate on the Bonds set under Section
2.02(a)(l).
"Deed of Trust" means the Subordinate Land Deed of Trust dated July 1,
1997 between the Company, as grantor, and the Issuer, as beneficiary, providing
for the security conveyance of certain property of the Company described
therein.
"Event of Default" is defined in Section 8.01.
"Favorable Opinion of Tax Counsel" means an Opinion of Tax Counsel
addressed to the Issuer and to the Trustee to the effect that the action
proposed to be taken is permitted by the laws of the State and by this Indenture
and will not adversely affect any exclusion from gross income for federal income
tax purposes of interest on the Bonds.
"Government Obligations" means (i) noncallable direct obligations of
the United States for which its full faith and credit are pledged, (ii)
noncallable obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States, or (iii) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of obligations
described in (i) or (ii).
"Indenture" means this Trust Indenture, as it may be amended or
supplemented from time to time in accordance with its terms.
"Interest Payment Date" is defined in the form of the Bonds appearing
in Exhibit A hereto.
"Interest Period" is defined in the form of the Bonds appearing in Exhibit
A hereto.
"J.J. Kenny Index" means, as of any date, the index of 7-day yields on
high grade tax exempt municipal bonds as determined by J.J. Kenny Co., Inc. or
any successor thereto and published on such date (or, if not published on said
date, on the most recent day prior thereto on which such index shall have been
so published).
"Long-Term Interest Rate" means an interest rate on the Bonds set under
Section 2.02(a)(4).
"Long-Term Interest Rate Period" is defined in Section 2.02(a)(4).
"Maturity Date" means the stated maturity for the Bonds as set forth in
Section 2.01.
"1954 Code" means the Internal Revenue Code of 1954, as amended, and
the Treasury regulations thereunder.
"Note" means the promissory note executed and delivered by the Company
concurrently with the issuance of the Bonds in a like principal amount bearing
interest at the rate or rates borne by the Bonds.
"Opinion of Counsel" means a written opinion of counsel who is
acceptable to the Issuer and the Trustee. Such counsel may be an employee of or
counsel to the Issuer, the Trustee or the Company.
"Opinion of Tax Counsel" means an Opinion of Counsel by counsel of
nationally recognized standing in matters relating to the exclusion of interest
from gross income on obligations issued by or on behalf of states and their
political subdivisions.
The term "outstanding" when used with reference to Bonds, or "Bonds
outstanding" means all Bonds which have been authenticated and delivered by the
Trustee under this Indenture, except the following:
a. Bonds canceled or purchased by or delivered to the Trustee for
cancellation.
b. Bonds that have become due (at maturity or on redemption,
acceleration or otherwise) and for the payment, including interest
accrued to the due date, of which sufficient moneys are held by the
Trustee.
c. Bonds deemed paid by Section 7.01.
d. Bonds in lieu of which others have been authenticated under
Section 2.05 (relating to registration and exchange of Bonds) or
Section 2.06 (relating to mutilated, lost, stolen, destroyed or
undelivered Bonds).
Bonds purchased pursuant to tenders or in lieu of redemption and not delivered
to the Trustee for payment are not outstanding, but there will be outstanding
Bonds authenticated and delivered in lieu of such undelivered Bonds as provided
in the second paragraph of Section 2.06.
"Participant" means one of the entities which deposit securities,
directly or indirectly, in the Book-Entry System.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
The term "principal," when used with reference to any Bonds, includes
any premium payable on those Bonds.
"Prior Indenture" means the Trust Indenture dated as of March 1, 1992,
as supplemented and amended, between the Issuer and the Refunded Bonds Trustee
under which the Refunded Bonds were issued.
"Project" has the meaning assigned to such term in the Agreement.
"Record Date" is defined in the form of the Bonds appearing as Exhibit A
hereto.
"Refunded Bonds" means $3,930,000 principal amount of the Issuer's
Pollution Control Revenue Refunding Bonds (Gulf Power Company Project), Series
1992, being refunded by the Bonds.
"Refunded Bonds Trustee" means First Union National Bank, as successor
to First Union National Bank of Florida, in its capacity as trustee for the
Refunded Bonds.
"Remarketing Agent" means SunTrust Bank, Atlanta and its successors
under this Indenture.
"Responsible Officer" means any officer or trust officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Securities Depository" means The Depository Trust Company, New York,
New York or its nominee, and its successors and assigns, or any successor
appointed under Section 5.01.
"State" means the State of Florida.
"Trustee" means the entity identified as such in the heading of this
Indenture and its successors under this Indenture.
"Unassigned Rights" means the rights of the Issuer under Section 4.2
and Section 5.3 of the Agreement.
"Weekly Rate" means an interest rate on the Bonds set under Section
2.02(a)(2).
Section 1.02. Rules of Construction. Unless the context otherwise requires,
a. an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles,
b. references to Articles and Sections are to the Articles and
Sections of this Indenture, and
c. the singular form of any word, including the terms defined in
Section 1.01, includes the plural, and vice versa, and a word of any
gender includes all genders.
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating. The Bonds shall be
designated "Jackson County, Florida Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series 1997." The total principal amount of Bonds
that may be outstanding shall not exceed $3,930,000. The Bonds shall be
substantially in the form of Exhibit A, which is part of this Indenture, in the
denominations provided for in the Bonds. The Bonds may have notations, legends
or endorsements required by law or usage.
All Bonds will be dated the date of original issuance and delivery and
shall mature, subject to prior redemption, on July 1, 2022. Bonds will be
numbered as determined by the Trustee.
Upon the execution and delivery of this Indenture, the Issuer will
execute and deliver to the Trustee and the Trustee will authenticate the Bonds
and deliver them to the purchaser or purchasers as directed by the Issuer.
Section 2.02. Interest on the Bonds. Interest on the Bonds will be
payable as provided in the Bonds and in this Section. Interest on the Bonds will
initially be payable at the Daily Rate. The interest rate determination method
may be changed by the Company as described in paragraph (b) below. The methods
of determining the various interest rates are as provided in the following
paragraph (a).
(a) Interest Rate Determination Methods. While there exists an Event of
Default under the Indenture, the interest rate on the Bonds will be the rate on
the Bonds on the day before the Event of Default occurred, except that if
interest on any Bond was then payable at a Commercial Paper Rate, the interest
rate for all Bonds then bearing interest at a Commercial Paper Rate will be the
highest Commercial Paper Rate then in effect for any Bond.
(1) Daily Rate. When interest on the Bonds is payable at a
Daily Rate, the Remarketing Agent will set a Daily Rate on or before
11:00 a.m., New York City time, on each Business Day for that Business
Day. Each Daily Rate will be the minimum rate necessary (as determined
by the Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing Agent to
have been priced or traded under then-prevailing market conditions) for
the Remarketing Agent to sell the Bonds on the day the rate is set at
their principal amount (without regard to accrued interest). The Daily
Rate for any non-Business Day will be the rate for the last day for
which a rate was set.
(2) Weekly Rate. When interest on the Bonds is payable at a
Weekly Rate, the Remarketing Agent will set a Weekly Rate on or before
5:00 p.m., New York City time, on the last Business Day before the
commencement of a period during which the Bonds bear interest at a
Weekly Rate and on each Tuesday thereafter so long as interest on the
Bonds is to be payable at a Weekly Rate or, if any Tuesday is not a
Business Day, on the next preceding Business Day. Each Weekly Rate will
be the minimum rate necessary (as determined by the Remarketing Agent
based on the examination of tax-exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been priced or traded
under then prevailing market conditions) for the Remarketing Agent to
sell the Bonds on the date the rate is set at their principal amount
(without regard to accrued interest). Thereafter, each Weekly Rate
shall apply to (i) the period beginning on the Wednesday after the
Weekly Rate is set and ending on the following Tuesday or, if earlier,
ending on the day before the effective date of a new method of
determining the interest rate on the Bonds or (ii) the period beginning
on the effective date of the change to a Weekly Rate and ending on the
next Tuesday.
(3) Commercial Paper Rate. During a Commercial Paper Mode,
each Bond will bear interest during the Commercial Paper Period for
such Bond at the Commercial Paper Rate for such Bond. Different
Commercial Paper Periods may apply to different Bonds at any time and
from time to time. Except as otherwise described in this subparagraph
(3), the Commercial Paper Period and Commercial Paper Rate for each
Bond will be determined by the Remarketing Agent no later than 12:15
p.m., New York City time, on the first day of each Commercial Paper
Period.
(i) Determination of Commercial Paper Periods.
Subject to Section 2.02(b)(2)(vii), each Commercial Paper
Period will be a period of at least 1 day and not more than 365
days, determined by the Remarketing Agent to be the period
which, together with all other Commercial Paper Periods for all
Bonds then outstanding, will, in the judgment of the
Remarketing Agent, result in the lowest overall interest
expense on the Bonds over the next 365 days. Each Commercial
Paper Period will end on either the day before a Business Day
or on the day before the Maturity Date for such Bond. However,
any Bond purchased on behalf of the Company and remaining
unsold by the Remarketing Agent as of the close of business on
the first day of the Commercial Paper Period for that Bond will
have a Commercial Paper Period of 1 day or, if that Commercial
Paper Period would not end on a day before a Business Day, a
Commercial Paper Period of the shortest possible duration
greater than 1 day ending on a day before a Business Day.
In determining the number of days in each Commercial
Paper Period, the Remarketing Agent shall take into account the
following factors: (I) existing short-term tax-exempt market
rates and indices of such short-term rates, (II) the existing
market supply and demand for short-term tax-exempt securities,
(III) existing yield curves for short-term and long-term
tax-exempt securities for obligations of credit quality
comparable to the Bonds, (IV) general economic conditions, (V)
industry economic and financial conditions that may affect or
be relevant to the Bonds, (VI) the number of days in other
Commercial Paper Periods applicable to the Bonds and (VII) such
other facts, circumstances and conditions as the Remarketing
Agent, in its sole discretion, shall determine to be relevant.
(ii) Determination of Commercial Paper Rates. The
Commercial Paper Rate for each Commercial Paper Period for each
Bond shall be the minimum rate necessary (as determined by the
Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing
market conditions) for the Remarketing Agent to sell such Bond
on the date and at the time of such determination at its
principal amount (without regard to accrued interest).
(4) Long-Term Interest Rate. The Remarketing Agent will set a
Long-Term Interest Rate on a date no more than 15 days before the
beginning of any period (a "Long-Term Interest Rate Period") in which
interest on any of the Bonds will be payable at a Long-Term Interest
Rate. The last day of each such Long-Term Interest Rate Period shall be
determined by the Company in accordance with Section 2.02(b)(1). Each
Long-Term Interest Rate will be the minimum rate necessary (as
determined by the Remarketing Agent based on the examination of
tax-exempt obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell the Bonds on the
effective date of the Long-Term Interest Rate at their principal amount
(without regard to accrued interest).
(5) Failure of Remarketing Agent to Announce Interest Rates on
the Bonds. If the appropriate interest rate or Commercial Paper Period
is not or cannot be determined for whatever reason, the method of
determining interest on the Bonds shall be automatically converted to
the Weekly Rate (without the necessity of complying with the
requirements of Section 2.02(b)) and the interest rate shall be equal
to the J.J. Kenny Index, or such other index (or percentage of an
index) deemed appropriate for tax-exempt securities of the nature of
the Bonds as the Remarketing Agent, with the consent of the Trustee,
may have previously selected, until such time as the method of
determining interest on the Bonds can be changed in accordance with
Section 2.02(b); provided, that if the Bonds are then in a Long-Term
Interest Rate Period, the Bonds shall bear interest at a Weekly Rate,
but only if a Favorable Opinion of Tax Counsel with respect to the
change to a Weekly Rate has been delivered to the Trustee and the
Issuer. If such Favorable Opinion of Tax Counsel has not been
delivered, the Bonds shall remain in a Long-Term Interest Rate Period
with an interest rate equal to the interest rate for the prior
Long-Term Interest Rate Period and with a duration equal to the prior
Long-Term Interest Rate Period (or, if earlier, a Long-Term Interest
Rate Period ending on the day before the Maturity Date for such Bond).
The Trustee shall promptly notify the Bondholders of any such automatic
change as set forth in Section 2.02(c).
While Bonds are in a Commercial Paper Mode, during any
transition period caused by an automatic conversion of such Bonds to a
Weekly Rate in accordance with this Subsection (5), Bonds bearing
interest at a Weekly Rate and Bonds bearing interest at a Commercial
Paper Rate, as applicable, shall be governed by the provisions of this
Indenture applicable to such methods of determining interest on the
Bonds.
(b) (1) Change in Interest Rate Determination Method. The Company may
change the method of determining the interest rate on the Bonds by notifying the
Issuer, the Trustee, the Remarketing Agent and, if a Book-Entry System is then
in effect for the Bonds, the Securities Depository. Such notice shall contain
(a) the effective date, (b) the proposed interest rate determination method, and
(c) if the change is to a Long-Term Interest Rate or Rates, the last day of the
first such Long-Term Interest Rate Period and, at the option of the Company, the
effective date and last day of any successive Long-Term Interest Rate Periods
(which last day for each Long-Term Interest Rate Period must be either the day
before the Maturity Date for such Bonds or a day which is before a Business Day
and is at least 365 days after the effective date). The Long-Term Interest Rate
Period shall be the same duration for all of the Bonds. The notice must be
accompanied by a Favorable Opinion of Tax Counsel, except as described below. If
the Company's notice complies with this paragraph, and if the Company shall
deliver addressed to the Trustee and the Issuer a confirming Opinion of Tax
Counsel on the effective date as specified in the notice, the interest rate on
the Bonds will be payable at the new rate on the effective date specified in the
notice until there is another change as provided in this Section.
Notwithstanding anything in this Indenture to the contrary, the Company must
deliver a Favorable Opinion of Tax Counsel whenever there is a change from a
period during which the interest rate on the Bonds is set at intervals of 365
days or less to a period during which the interest rate on the Bonds is set at
intervals in excess of 365 days, or vice versa.
If the Company wishes to designate successive Long-Term Interest Rate
Periods without specifying the effective dates and last days as described in the
preceding paragraph for the second or any subsequent Long-Term Interest Rate
Periods, it may do so by following the same procedure as for a change in the
interest rate determination method as provided in the foregoing paragraph.
If, 30 days before the end of a Long-Term Interest Rate Period, the
Company has not provided for the next interest rate period, a new Long-Term
Interest Rate Period of the same duration will follow (or if shorter, a
Long-Term Interest Rate Period ending on the day before the Maturity Date for
the Bonds).
When one Long-Term Interest Rate Period follows another, all provisions
of this Indenture applying to a change in the interest rate determination method
will apply, except:
(A) the redemption described under "Mandatory Redemption Upon a
Change in the Method of Determining the Interest Rate on the Bonds" in
the Bonds;
(B) the Company will not be required to deliver a Favorable
Opinion of Tax Counsel if a new Long-Term Interest Rate Period begins
as a result of the Company failing to provide for the next interest
rate period; and
(C) the Company will not be required to deliver a Favorable
Opinion of Tax Counsel if the Company has previously designated a
series of successive Long-Term Interest Rate Periods which, together
with the current Long-Term Interest Rate Period, are substantially
equal in length, and if a Favorable Opinion of Tax Counsel was
delivered before the first such Long-Term Interest Rate Period in that
series which applies to each such successive Long-Term Interest Rate
Period.
(2) Limitations. Any change in the method of determining interest on the
Bonds pursuant to paragraph (1) above must comply with the following:
(i) the effective date of a change (or each effective date in
the case of a change from a Commercial Paper Mode) shall be a Business
Day which is at least 15 days (30 days if a Long-Term Interest Rate is
then in effect and the effective date is before the day after the last
day of a Long-Term Interest Rate Period) after the twelfth Business Day
after receipt by the Trustee of the Company's notice of the change;
(ii) if a Long-Term Interest Rate is then in effect, the
effective date of any change must be either the day after the last day
of the then current Long-Term Interest Rate Period or, except as
described in clause (iii) below, a day on which the Bonds would
otherwise be subject to redemption or purchase in lieu of redemption
under the paragraph "Optional Redemption at a Premium During Long-Term
Interest Rate Period" in Section 8 of the Bonds if the change did not
occur;
(iii) if the Company has previously designated successive
Long-Term Interest Rate Periods, the effective date of each Long-Term
Interest Rate Period must be the day after the last day of the previous
Long-Term Interest Rate Period;
(iv) if a Commercial Paper Mode is then in effect, the
effective date of any change must be either the day after the last day
of the Commercial Paper Mode or, as to any Bond, the day after the last
day of the Commercial Paper Period then in effect (or to be in effect)
with respect to that Bond;
(v) if any Bonds have been called for redemption and the
redemption has not yet occurred, the effective date of the change
cannot be before such redemption date;
(vi) if a Long-Term Interest Rate or a Daily Rate is then in
effect, the effective date of any change cannot occur during the period
after a Record Date and to, but not including, the related Interest
Payment Date; and
(vii) if a Commercial Paper Mode is then in effect, the
Remarketing Agent shall determine Commercial Paper Periods of such
duration that will, in the judgment of the Remarketing Agent, best
promote an orderly transition on the effective date. After the receipt
by the Trustee of the Company's notice of such change, the day after
the last day of each Commercial Paper Period shall be, with respect to
such Bond, the effective date of the change. The Remarketing Agent
shall promptly give written notice of each such last date and each such
effective date with respect to each Bond to the Issuer, the Company,
and the Trustee.
During any such transition period, Bonds bearing interest at a
Commercial Paper Rate shall be governed by the provisions of this
Indenture applicable to a Commercial Paper Mode and Bonds bearing
interest at a Daily Rate, Weekly Rate or Long-Term Interest Rate, as
applicable, shall be governed by the provisions of this Indenture
applicable to such methods of determining interest on the Bonds.
(c) Notice to Bondholders of Change in Interest Rate Determination
Method. When a change in the interest rate determination method is to be made,
or upon commencement of a new Long-Term Interest Rate Period, the Trustee will,
upon notice from the Company pursuant to Section 2.02(b), notify the Bondholders
by first class mail at least 15 days before the effective date (or each
effective date in the case of an adjustment from a Commercial Paper Mode) of the
change, except that such notice shall be given at least 30 days prior to the
effective date if a Long-Term Interest Rate is in effect and the effective date
is on or before the end of the Long-Term Interest Rate Period. The notice shall
be effective when sent and shall state:
(1) that the interest rate determination method will be changed
and what the new method will be,
(2) the effective date of the new rate, and
(3) that a mandatory redemption or mandatory purchase in lieu of
redemption will result on the effective date of the change as provided
in the Bonds and all the information required by this Indenture to be
included in a notice of redemption set forth in Section 3.04.
The information required in any notice pursuant to this subsection (c)
and the information referred to in any redemption notice (including an
Additional Notice) pursuant to Section 3.04 may be combined in a single notice
if it is sent to Bondholders in the manner and at the time specified under
"Notice of Redemption" in Section 8 of the form of the Bonds.
(d) Calculation of Interest. The Remarketing Agent shall provide the
Trustee and the Company with notice in writing or by telephone (any such notice
by telephone to be delivered to a Responsible Officer of the Trustee) promptly
confirmed by facsimile transmission by 12:30 p.m., New York City time,
(1) on the first Business Day after a month in which interest on
the Bonds was payable at a Daily Rate, of the Daily Rate for each day
in such month,
(2) on each day on which a Weekly Rate becomes effective, of the
Weekly Rate,
(3) on the first day of each Commercial Paper Period, of the
length thereof and the Commercial Paper Rate, and, if there is more
than one Commercial Paper Rate then in effect, of the related
applicable principal amounts,
(4) on the first Business Day of a Long-Term Interest Rate
Period, of the Long-Term Interest Rate or Long-Term Interest Rates set
for that period and the related applicable principal amounts, and
(5) on any Business Day preceding any redemption or purchase
date, any interest rate requested by the Trustee in order to enable it
to calculate the accrued interest, if any, due on such redemption or
purchase date.
Using the rates supplied by this notice, the Trustee will calculate the
interest payable on the Bonds. The Remarketing Agent will inform the Trustee and
the Company orally at the oral request of either of them of any interest rate
set by the Remarketing Agent. The Trustee will confirm the effective interest
rate by telephone or in writing to any Bondholder who requests it in any manner.
The setting of the rates and the determination of Commercial Paper
Periods by the Remarketing Agent and the calculation of interest payable on the
Bonds by the Trustee as provided in this Indenture will be conclusive and
binding on the Issuer, the Company, the Trustee and the owners of the Bonds.
(e) Change in Rate Determination Method-Opinions of Counsel.
Notwithstanding any provision of this Section 2.02, no change shall be made in
the interest rate determination method at the direction of the Company pursuant
to Section 2.02(b)(1) hereof if the Company shall fail to deliver a Favorable
Opinion of Tax Counsel and confirmation thereof required under Section
2.02(b)(1). If the Trustee shall have sent any notice to the Bondholders
regarding a change in rate under Section 2.02(c), then in the event of such
failure to deliver such opinion or confirmation, the Trustee shall promptly
notify all Bondholders of such failure.
Section 2.03. Execution and Authentication. The Bonds shall be signed
on behalf of the Issuer with the manual or facsimile signature of the Chairman
or Vice Chairman of its Board of County Commissioners and attested by the manual
or facsimile signature of its Clerk or Deputy Clerk, and the seal of the Issuer
shall be impressed or imprinted on the Bonds by facsimile or otherwise. All
authorized facsimile signatures shall have the same effect as if manually
signed. If an officer of the Issuer whose signature is on a Bond no longer holds
that office at the time the Trustee authenticates the Bond, the Bond shall
nevertheless be valid. Also, if a person signing a Bond is the proper officer on
the actual date of execution, the Bond shall be valid even if that person is not
the proper officer on the nominal date of action.
A Bond shall not be valid for any purpose under this Indenture until
the Trustee manually signs the certificate of authentication on the Bond. Such
signature shall be conclusive evidence that the Bond has been authenticated
under this Indenture.
As a precondition to the initial authentication and delivery of the
Bonds, the Trustee shall receive a request and authorization to the Trustee from
the Issuer, signed by the Chairman or Vice Chairman of the Issuer, to
authenticate and deliver the Bonds to the persons and in the manner therein
described.
Section 2.04. Bond Register. Bonds must be presented at the principal
corporate trust office of the Trustee for registration, registration of
transfer, exchange and payment. Bonds tendered by their holders must be
delivered as specified in the Bonds. The Trustee shall keep a register of Bonds
and of their registration of transfer and exchange, which register shall be open
to inspection by the Issuer and the Company during normal business hours.
Section 2.05. Registration and Exchange of Bonds; Persons Treated as
Owners. Bonds may be registered as transferred only on the register maintained
by the Trustee. Upon surrender for registration of transfer of any Bond to the
Trustee, duly endorsed for transfer or accompanied by an assignment duly
executed by the holder or the holder's attorney duly authorized in writing, the
Trustee will authenticate a new Bond or Bonds of the same maturity, in an equal
total principal amount and registered in the name of the transferee.
Bonds may be exchanged for an equal total principal amount of Bonds of
the same maturity but of different authorized denominations. The Trustee will
authenticate and deliver Bonds that the Bondholder making the exchange is
entitled to receive, bearing numbers not then outstanding.
Except in connection with the purchase of Bonds tendered for purchase
or purchased in lieu of redemption, the Trustee will not be required to register
the transfer of or to exchange any Bond called for redemption or during the
period beginning 15 days before the mailing of notice calling the Bonds or any
portion of the Bonds for redemption and ending on the redemption date.
The registered owner of a Bond shall be treated as the absolute owner
of the Bond for all purposes, and payment of principal, interest or purchase
price shall be made only to or upon the written order of the holder or the
holder's legal representative, notwithstanding any notice, actual or
constructive, to the contrary.
The Trustee will require the payment by a Bondholder requesting
exchange or registration of transfer of any tax or other governmental charge
required to be paid in respect of the exchange or registration of transfer but
will not impose any other charge.
Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds.
If any Bond is mutilated, lost, stolen or destroyed, the Trustee will
authenticate a new Bond of the same denomination with similar terms if any
mutilated Bond shall first be surrendered to the Trustee, and if, in the case of
any lost, stolen or destroyed Bond, there shall first be furnished to the
Issuer, the Trustee and the Company evidence of such loss, theft or destruction,
together with an indemnity, satisfactory to them. If the Bond has matured or
become subject to redemption or purchase, instead of issuing a replacement Bond,
the Trustee may with the consent of the Company pay the Bond without requiring
surrender of the Bond and make such requirements as the Trustee deems fit for
its protection, including a lost instrument bond. The Issuer, the Company and
the Trustee may charge their reasonable fees and expenses in this connection.
If a Bond is called for redemption and the Company elects to purchase
the Bond in lieu of redemption as provided in Article III, or if the holder of a
Bond gives irrevocable instructions to the Remarketing Agent for purchase, and
in each case funds are deposited with the Trustee sufficient for the purchase,
the Trustee upon request of the Company or the Remarketing Agent will
authenticate a new Bond in the same maturity and in the same denomination
registered as the Company or the Remarketing Agent may direct and deliver it to
the Company or upon the Company's order, whether or not the Bond purchased or
called for redemption is ever delivered, and the undelivered Bonds shall be
canceled on the books of the Trustee, whether or not said undelivered Bonds have
been delivered to the Trustee. From and after the purchase date, interest on
such Bond shall cease to be payable to the prior holder thereof, such holder
shall cease to be entitled to the benefits or security of this Indenture and
shall have recourse solely to the funds held by the Trustee for the purchase of
such Bond and the Trustee shall not register any further transfer of such Bond
by such prior holder. All funds held by the Trustee for the purchase of
undelivered Bonds shall be held uninvested.
Section 2.07. Cancellation of Bonds. Whenever a Bond is delivered to
the Trustee for cancellation (upon payment, redemption or otherwise), or for
registration of transfer, exchange or replacement pursuant to Section 2.05 or
Section 2.06, the Trustee will promptly cancel and dispose of the Bond in
accordance with the Trustee's policy of disposal; provided, however, that the
Trustee shall not be required to destroy canceled Bonds.
Section 2.08. Temporary Bonds. Until definitive Bonds are ready for
delivery, the Issuer may execute and the Trustee will authenticate temporary
Bonds substantially in the form of the definitive Bonds, with appropriate
variations. The Issuer will, without unreasonable delay, prepare and the Trustee
will authenticate definitive Bonds in exchange for the temporary Bonds. Such
exchange shall be made by the Trustee without charge.
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee. If the Company wishes that any Bonds
be redeemed pursuant to any optional redemption provision in the Bonds, the
Company will notify the Trustee of the applicable provision, the redemption
date, the principal amount of the Bonds to be redeemed and other necessary
particulars in accordance with Section 4.7 of the Agreement.
Section 3.02. Redemption Dates. The redemption date of Bonds to be
redeemed pursuant to any optional redemption provision in the Bonds will be a
date permitted by the Bonds and specified by the Company in the notice delivered
pursuant to Section 4.7 of the Agreement. The redemption date for mandatory
redemptions will be as specified in the Bonds to be redeemed or determined by
the Trustee consistently with the provisions of the Bonds.
Section 3.03. Selection of Bonds to Be Redeemed. Except as provided in
the Bonds, if fewer than all the Bonds are to be redeemed, the Trustee will
select the Bonds to be redeemed by lot or other method it deems fair and
appropriate, except that the Trustee will first select any Bonds owned by the
Company or any of its nominees or held by the Trustee for the account of the
Company or any of its nominees. The Trustee will make the selection from Bonds
not previously called for redemption. For this purpose, the Trustee will
consider each Bond in a denomination larger than the minimum denomination
permitted by the Bonds at the time to be separate Bonds each in the minimum
denomination. Provisions of this Indenture that apply to Bonds called for
redemption also apply to portions of Bonds called for redemption.
Section 3.04. Redemption Notices.
(a) Official Notice of Redemption. The Trustee will give notice of each
redemption as provided in the Bonds and will at the same time give a copy of the
notice to the Remarketing Agent, provided that no redemption notice shall be
given with respect to a redemption under "Mandatory Redemption on Each Interest
Payment Date During Commercial Paper Mode" in Section 8 of the form of the
Bonds. The notice shall identify the Bonds to be redeemed and shall state (1)
the redemption date (and, if the Bonds provide that accrued interest will not be
paid on the redemption date, the date it will be paid), (2) the redemption
price, (3) that the Bonds called for redemption must be surrendered to collect
the redemption price, (4) the address at which the Bonds must be surrendered and
(5) that interest on the Bonds called for redemption ceases to accrue on the
redemption date.
With respect to an optional redemption of any Bonds under "Optional
Redemption at a Premium During Long-Term Interest Rate Period," "Extraordinary
Optional Redemption" or "Optional Redemption During Daily or Weekly Rate Period"
in Section 8 of the form of the Bonds, unless moneys sufficient to pay the
principal of, redemption premium, if any, and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the giving of such
notice of redemption, such notice may state that said redemption shall be
conditional upon the receipt of such moneys by the Trustee on or prior to the
date fixed for redemption. If such moneys are not received, such notice shall be
of no force and effect, the Issuer shall not redeem such Bonds, the redemption
price shall not be due and payable, and the Trustee shall give notice, in the
same manner in which the notice of redemption was given, that such moneys were
not so received and that such Bonds will not be redeemed.
Failure to give any required notice of redemption as to any particular
Bonds or any defect therein will not affect the validity of the call for
redemption of any Bonds in respect of which no such failure or defect has
occurred. Any notice mailed as provided in the Bonds shall be effective when
sent and will be conclusively presumed to have been given whether or not
actually received by any holder.
(b) Additional Notice of Redemption. In addition to the redemption
notice required above, if there is not a Book-Entry System in effect for the
Bonds, further notice (the "Additional Notice") shall be given by the Trustee as
set out below. No defect in the Additional Notice nor any failure to give all or
any portion of the Additional Notice shall in any manner defeat the
effectiveness of a call for redemption if notice is given as prescribed in
paragraph (a) above.
(1) Each Additional Notice of redemption shall contain the
information required in paragraph (a) above for an official notice of
redemption plus (i) the CUSIP numbers of all Bonds being redeemed; (ii)
the date of the Bonds as originally issued; (iii) the interest rate
determination method for, or the rate of interest borne by each Bond
being redeemed; (iv) the maturity date of each Bond being redeemed; and
(v) any other descriptive information needed to identify accurately the
Bonds being redeemed.
(2) Each Additional Notice of redemption shall be sent at
least 30 days before the redemption date by registered or certified
mail or overnight delivery service (or by such other means as the
Trustee may have established with the securities depository or
information service) to all registered securities depositories then in
the business of holding substantial amounts of obligations similar to
the Bonds (such depositories now being Depository Trust Company of New
York, New York, Midwest Securities Trust Company of Chicago, Illinois,
and Philadelphia Depository Trust Company of Philadelphia,
Pennsylvania) and to one or more national information services that
disseminate notices of redemption of obligations such as the Bonds.
The information required in any redemption notice (including an
Additional Notice) pursuant to this Section and the information required in any
notice pursuant to Section 2.02(c) may be combined in a single notice if it is
sent to Bondholders in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
Section 3.05. Payment of Bonds Called for Redemption. Upon surrender to
the Trustee, Bonds called for redemption shall be paid or purchased in lieu of
redemption as provided in this Article at the redemption price (including
premium, if any) stated in the notice, plus interest accrued to the redemption
date, or at a purchase price as provided in the form of Bond, except that
interest payable on Bonds bearing interest at a Daily Rate will be paid on the
fifth Business Day following the redemption date. Bonds called for redemption
and purchased pursuant to a tender before the redemption date will not be
redeemed but will be dealt with as provided below in this Article. Upon the
payment of the redemption price of the Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP number
identifying, by issue and maturity, the Bonds being redeemed with the proceeds
of such check or other transfer.
Section 3.06. Bonds Redeemed in Part. Subject to Article V, upon
surrender of a Bond redeemed or purchased in lieu of redemption in part, the
Trustee will authenticate for the holder a new Bond or Bonds in authorized
denominations equal in principal amount to the unredeemed or unpurchased portion
of the Bond surrendered.
Section 3.07. Purchase of Bonds in Lieu of Redemption. When Bonds are
called for redemption pursuant to the paragraphs captioned "Optional Redemption
at a Premium During Long-Term Interest Rate Period", "Mandatory Redemption at
Beginning of a New Long-Term Interest Rate Period" or "Mandatory Redemption Upon
a Change in the Method of Determining the Interest Rate on the Bonds" in Section
8 of the form of the Bonds, the Company may purchase some of or all the Bonds
called for redemption for a price equal to the otherwise applicable redemption
price, if it (or the Remarketing Agent) gives written notice to the Trustee by
5:00 p.m. New York City time on the day before the redemption date that it
wishes to purchase the Bonds the principal amount of which is specified in the
notice and furnishes the Trustee sufficient money in sufficient time for the
Trustee to make the purchase on the redemption date. The Trustee will purchase
Bonds called for redemption pursuant to the paragraph captioned "Mandatory
Redemption on Each Interest Payment Date During Commercial Paper Mode" unless
otherwise instructed in writing by the Company, or unless the Indenture
otherwise requires that they be redeemed and canceled, before the redemption
date. The Trustee will purchase the Bonds pursuant to this Section only as
provided in Section 4.02.
Section 3.08. Disposition of Purchased Bonds. (a) Bonds to be Remarketed.
Bonds purchased pursuant to tenders as provided in the form of Bonds or in lieu
of redemption as provided in the foregoing Section will be offered for sale by
the Remarketing Agent as provided in this Section except as follows:
(1) Bonds purchased pursuant to a tender after having been
called for redemption under a provision in the form of Bond that does
not provide the Company an option to purchase in lieu of redemption
will be canceled.
(2) Bonds called for redemption under "Mandatory Redemption
Upon a Change in the Method of Determining the Interest Rate on the
Bonds" in Section 8 of the form of Bond, which are tendered between the
date notice of redemption is given and the redemption date, may be
remarketed before the redemption date only if the buyer receives a copy
of the redemption notice from the Remarketing Agent.
(3) Bonds will not be offered for sale under this Section
during the continuance of an Event of Default under Section 8.01(a),
(b), (c) or (d). Bonds will be offered for sale under this Section
during an event which with the passage of time or the giving of notice
or both may become an Event of Default only in the sole discretion of
the Remarketing Agent.
(b) Remarketing Effort. Except to the extent the Company directs the
Remarketing Agent not to do so, the Remarketing Agent will offer for sale and
use reasonable efforts to sell all Bonds to be sold as provided in paragraph (a)
above and, when directed by the Company, any Bonds held by the Company. The sale
price of each Bond must be equal to the principal amount of each Bond plus
accrued interest, if any, to the purchase date. The Company may direct the
Remarketing Agent from time to time to cease and to resume sales efforts with
respect to some of or all the Bonds. The Remarketing Agent may buy as principal
any Bonds to be offered under this Section.
(c) Notices in Respect of Tenders. When the Trustee receives a notice
from a Bondholder (or a Beneficial Owner through its direct Participant) as
specified in Section 6 of the form of the Bond for the Bondholder (or a
Beneficial Owner through its direct Participant) to tender Bonds, the Trustee
will promptly notify the Remarketing Agent and the Company by facsimile
transmission or telephone, promptly confirmed in writing, of the receipt of such
notice, but in no event later than the following times:
(i) when the Bonds bear interest at a Daily Rate, no later than
11:30 a.m. (New York City time) on the same Business Day; and
(ii) when the Bonds bear interest at a Weekly Rate, no later than
11:15 a.m. (New York City time) on the Business Day next succeeding
receipt of such notice.
(d) Delivery of Remarketed Bonds.
(i) Except when a book-entry system of registration is in
effect, the Trustee shall hold all Bonds delivered pursuant to this Section in
trust for the benefit of the owners thereof until moneys representing the
purchase price of such Bonds shall have been delivered to or for the account of
or to the order of such Bondholders, and thereafter, if such Bonds are
remarketed, shall deliver replacement Bonds, prepared by the Trustee in
accordance with the directions of the Remarketing Agent and authenticated by the
Trustee, for any Bonds purchased in accordance with the written directions of
the Remarketing Agent to the Remarketing Agent for delivery to the purchasers
thereof.
(ii) The Remarketing Agent shall advise the Trustee and the
Company in writing or by facsimile transmission of the principal amount of Bonds
which have been remarketed, together with the denominations and registration
instructions (including taxpayer identification numbers) in accordance with the
following schedule (all times of which are New York City time):
CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION
DETERMINATION OR, IN CONNECTION TO BE FURNISHED
WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE
NEW METHOD OF INTEREST RATE
DETERMINATION
Commercial Paper Period 12:15 p.m. on the purchase date
Daily Rate Period 12:15 p.m. on the purchase date
Weekly Rate Period 12:15 p.m. on the purchase date
Long-Term Interest Rate Period 12:15 p.m. on the purchase date
(iii) The terms of any sale by the Remarketing Agent shall
provide for the authorization of the payment of the purchase price by
the Remarketing Agent to the Trustee in exchange for Bonds registered
in the name of the new Bondholder which shall be delivered by the
Trustee to the Remarketing Agent at or before 2:00 p.m. (New York City
time) on the purchase date if the purchase price has been received from
the Remarketing Agent by the time set forth in Section 3.08(e) on the
purchase date.
(e) Delivery of Proceeds of Sale. The Remarketing Agent shall deliver
directly to the Trustee an amount equal to the principal amount thereof plus
accrued interest, if any, of the Bonds which the Remarketing Agent has advised
the Trustee have been remarketed pursuant to Section 3.08(d)(ii) no later than
12:30 p.m. (New York City time) on the purchase date.
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds. The Issuer will cause the
proceeds of the initial sale of the Bonds to be deposited with the Trustee in a
segregated trust account. On a date or dates to be designated by the Company the
Trustee will disburse the proceeds of the initial sale of the Bonds and any
investment earnings thereon to the Refunded Bonds Trustee for deposit in the
bond fund created under the Prior Indenture, to be applied to pay the redemption
price of the Refunded Bonds upon call for redemption.
Pursuant to Section 3.1 of the Agreement, the Company has agreed to pay
to the Refunded Bonds Trustee the amount in excess of the proceeds of the Bonds
needed to pay the redemption price of the Refunded Bonds.
Section 4.02. Payment of Bonds. The Trustee will make payments of
principal of, premium, if any, and interest on the Bonds from moneys available
to the Trustee under this Indenture for that purpose. The Trustee will pay the
purchase price of tendered Bonds first from the proceeds of the remarketing of
Bonds under Section 3.08 and second from other moneys available to the Trustee
for that purpose.
All moneys received as proceeds of remarketing the Bonds under Section
3.08 shall be held segregated by the Trustee in a separate and segregated trust
account. To the extent that the payment of principal or interest on the Bonds is
made from moneys as described in this Section, such payment shall also satisfy
and discharge any payment obligation of the Company under the Note and the
Trustee shall promptly notify the Company and the Mortgage Trustee in writing if
such payment requirement has not been satisfied. If any Bond is redeemed prior
to maturity or if the Company surrenders any Bond to the Trustee for
cancellation, the Trustee shall cancel such Bond.
Section 4.03. Investments of Moneys. The Trustee will invest and reinvest
moneys held by the Trustee as directed by the Company in writing, in:
(a) Government Obligations;
(b) Bonds and notes of the Federal Land Bank;
(c) Obligations of the Federal Intermediate Credit Bank;
(d) Obligations of the Federal Bank for Cooperatives;
(e) Bonds and notes of Federal Home Loan Banks;
(f) Negotiable or non-negotiable certificates of deposit, time deposits
or similar banking arrangements, issued by a bank or trust company (which may be
the commercial banking department of the Trustee or any bank or trust company
under common control with the Trustee) or savings and loan association which are
insured by the Federal Deposit Insurance Corporation or secured as to principal
by Government Obligations; or
(g) Other investments then permitted by law.
The Trustee may make investments permitted by this Article through its
own bond department or the bond department of any bank or trust company under
common control with the Trustee. The Trustee, when authorized by the Company,
may trade with itself in the purchase and sale of securities for such
investment. Investments will be registered in the name of the Trustee and held
by or under the control of the Trustee. The Trustee will sell and reduce to cash
a sufficient amount of investments whenever the cash held by the Trustee is
insufficient. The Trustee shall not be liable for any loss from such investments
to the extent directed by the Company.
Section 4.04. Moneys Held in Trust; Unclaimed Funds. The Trustee shall
deposit into a separate and segregated trust account for the benefit of the
Bondholders all moneys received by it for any payment on the Bonds. The proceeds
of the initial sale of the Bonds shall be held in a separate and segregated
trust account by the Trustee until disbursed as described in Section 4.01. Money
received by the Remarketing Agent or the Trustee from the sale of a Bond under
Section 3.08 or for the purchase of a Bond will be held segregated from other
funds of the Remarketing Agent or the Trustee in trust for the benefit of the
person from whom such Bond was purchased or the person delivering such purchase
money, as the case may be, and will not be invested. The Trustee shall promptly,
but in no event later than 30 days of their original deposit, apply moneys
received from the Company in accordance with this Indenture and as directed in
writing by the Company.
Notwithstanding the provisions of the immediately preceding paragraph,
any moneys which shall be set aside by the Trustee or deposited by the Trustee
with the paying agents and which shall remain unclaimed by the holders of such
Bonds for a period of six (6) years after the date on which such Bonds shall
have become due and payable shall upon request in writing be paid to the Company
or to such officer, board or body as may then be entitled by law to receive the
same, and thereafter the holders of such Bonds shall look only to the Company or
to such officer, board or body, as the case may be, for payment and then only to
the extent of the amount so received without any interest thereon, and the
Trustee, the Issuer and the paying agents shall have no responsibility with
respect to such moneys.
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System. The Bonds shall be initially issued in
the name of Cede & Co., as nominee for The Depository Trust Company as the
initial Securities Depository and registered owner of such Bonds, and held in
the custody of the Securities Depository. A single certificate will be issued
and delivered to the Securities Depository, or a custodian thereof, for the
Bonds. The Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as the Securities Depository
shall continue to serve as securities depository for such Bonds as provided
herein, all transfers of beneficial ownership interests will be made by
book-entry only on the records of the Securities Depository, and no investor or
other party purchasing, selling or otherwise transferring beneficial ownership
of such Bonds is to receive, hold or deliver any Bond certificate. The Issuer,
the Company and the Trustee will recognize the Securities Depository or its
nominee as the Bondholder of such Bonds for all purposes, including payment,
notices and voting.
The Issuer and the Trustee covenant and agree, so long as The
Depository Trust Company shall continue to serve as Securities Depository for
the Bonds, to meet the requirements of The Depository Trust Company with respect
to required notices and other provisions of the Letter of Representations among
The Depository Trust Company, the Issuer, the Trustee, the Company and the
Remarketing Agent, executed with respect to the Bonds.
The Issuer, the Trustee, the Company and the Remarketing Agent may
conclusively rely upon (i) a certificate of the Securities Depository as to the
identity of the Participants in the Book-Entry-System and (ii) a certificate of
any such Participant as to the identity of, and the respective principal amount
of Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial ownership
thereof is determined by a book-entry at the Securities Depository, the
requirements in this Indenture of holding, delivering or transferring Bonds
shall be deemed modified to require the appropriate person to meet the
requirements of the Securities Depository as to registering or registering the
transfer of the book-entry to produce the same effect. Any provision hereof
permitting or requiring delivery of Bonds shall, while the Bonds are in a
Book-Entry System, be satisfied by the notation on the books of the Securities
Depository in accordance with applicable law.
The Trustee and the Issuer, at the direction and expense of the Company
and with the consent of the Remarketing Agent, may from time to time appoint a
successor Securities Depository and enter into an agreement with such successor
Securities Depository to establish procedures with respect to the Bonds
consistent with current industry practice. Any successor Securities Depository
shall be a "clearing agency" registered under Section 17A of the Securities
Exchange Act of 1934, as amended.
None of the Issuer, the Company, the Trustee nor the Remarketing Agent
will have any responsibility or obligation to any Securities Depository, any
Participants in the Book-Entry System or the Beneficial Owners with respect to
(i) the accuracy of any records maintained by the Securities Depository or any
Participant; (ii) the payment by the Securities Depository or by any Participant
of any amount due to any Beneficial Owner in respect of the principal amount or
redemption or purchase price of, or interest on, any Bonds; (iii) the delivery
of any notice by the Securities Depository or any Participant; (iv) the
selection of the Beneficial Owners to receive payment in the event of any
partial redemption of the Bonds; or (v) any other action taken by the Securities
Depository or any Participant.
Bond certificates are required to be delivered to and registered in the
name of the Beneficial Owner, under the following circumstances:
(a) The Securities Depository determines to discontinue providing
its service with respect to the Bonds and no successor Securities
Depository is appointed as described above. Such a determination may
be made at any time by giving 30 days' notice to the Issuer, the
Company and the Trustee and discharging its responsibilities with
respect thereto under applicable law.
(b) The Company determines not to continue the Book-Entry System
through a Securities Depository.
The Trustee is hereby authorized to make such changes to the form of
bond attached hereto as Exhibit A which are necessary or appropriate to
reflect that the Book-Entry System is not in effect, that a successor
Securities Depository has been appointed or that an additional or
co-paying agent or tender agent has been designated pursuant to Section
13.03 hereof.
If at any time, the Securities Depository ceases to hold the Bonds all
references herein to the Securities Depository shall be of no further force or
effect.
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds. The Issuer will promptly pay the
principal of, premium, if any, and interest on, and other amounts due with
respect to, the Bonds on the dates and in the manner provided in the Bonds, but
only from the amounts assigned to and held by the Trustee under this Indenture.
Neither the State of Florida, nor any political subdivision thereof (including
Jackson County) shall be obligated to pay the principal of the Bonds, or the
premium, if any, or interest thereon or other costs incidental thereto, the same
being payable solely from the revenues and receipts hereinabove referred to.
The Bonds do not pledge the faith, credit or taxing power of the State
of Florida or any political subdivision thereof, including the County, but shall
be limited and special obligations payable solely from the proceeds derived by
the Issuer under the Agreement and the Note, and neither the Issuer nor the
State of Florida, nor any political subdivision thereof, shall ever be required
to (i) levy ad valorem taxes on any property within its territorial limits to
pay the principal of and premium, if any, and interest on the Bonds or to make
any other payments provided for hereunder or under the Agreement or the Note for
the Bonds, or (ii) pay the same from any funds of the Issuer other than those
derived by the Issuer under the Agreement or the Note, and such Bonds shall not
constitute a lien upon any property owned by or situated within the territorial
limits of the Issuer except the proceeds derived under the Agreement and the
Note.
Section 6.02. Performance of Covenants; Issuer. The Issuer covenants
that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond executed, authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The Issuer covenants that it is duly authorized
under the Constitution and laws of the State of Florida, including particularly
and without limitation the Act, to issue the Bonds authorized hereby and to
execute this Indenture, to assign and pledge the Note and the Agreement and the
amounts payable under the Note and to pledge the amounts hereby pledged in the
manner and to the extent herein set forth; that all action on its part necessary
for the issuance of the Bonds and the execution and delivery of this Indenture
has been duly and effectively taken; and that the Bonds in the hands of the
owners thereof are and will be valid and enforceable obligations of the Issuer
according to the terms thereof and hereof.
Section 6.03. Recording and Filing; Further Assurances. The Issuer will
execute and deliver such supplemental indentures and such further instruments,
and do such further acts, as the Trustee may reasonably require for the better
assuring, assigning and confirming to the Trustee the amounts assigned under
this Indenture for the payment of the Bonds. The Issuer further covenants that
it will not create or suffer to be created any lien, encumbrance or charge upon
its interest in the Note, the Deed of Trust or the Agreement, if any, except the
lien of this Indenture.
Section 6.04. Tax Covenants. The Issuer covenants that it shall not
knowingly take any action which would cause the Bonds to be treated as
"arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code
of 1986, as amended, and the proposed, temporary or final regulations thereunder
as such may be applicable to the Bonds or the proceeds derived from the sale of
the Bonds or any other moneys; provided, however, that no action taken by the
Issuer pursuant to and in accordance with the terms of the Agreement or this
Indenture shall give rise in any manner whatsoever to any claim against or
liability of the Issuer under this Indenture; and provided further, that any
such claims or liabilities shall in all events be subject to the indemnification
provisions of the Agreement.
Notwithstanding any provision of this Indenture to the contrary, the
Trustee shall not be liable or responsible for any calculation or determination
which may be required in connection with, or for the purpose of complying with,
Section 148 of the Code, or any successor statute or any regulation, ruling or
other judicial or administrative interpretation thereof, including, without
limitation, the calculation of amounts required to be paid to the United States
of America or the determination of the maximum amount which may be invested in
nonpurpose obligations having a yield higher than the yield on the Bonds, and
the Trustee shall not be liable or responsible for monitoring the compliance by
the Issuer or the Company with any of the requirements of Section 148 of the
Code or any applicable regulation, ruling or other judicial or administrative
interpretation thereof; it being acknowledged and agreed that the sole
obligation of the Trustee with respect to the investment of monies held under
any fund or account created hereunder shall be to invest such monies in
accordance with Section 4.03 hereof in each case pursuant to the instructions
received by the Trustee in accordance with Section 4.03 hereof.
Section 6.05. Rights Under Agreement. The Agreement, a duly executed
counterpart of which has been filed with the Trustee, sets forth the covenants
and obligations of the Issuer and the Company, and reference is hereby made to
the same for a detailed statement of said covenants and obligations of the
Company thereunder; and the Issuer agrees that the Trustee in its own name or in
the name of the Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Agreement for and on behalf of the
Bondholders, whether or not the Issuer is in default hereunder.
Section 6.06. Designation of Additional Paying Agents. The Issuer may
cause, with the consent of the Company, the necessary arrangements to be made
through the Trustee and to be thereafter continued for the designation of
additional paying agents and for providing for the payment of such of the Bonds
as shall be presented when due at the designated corporate trust office of the
Trustee, or its successor in trust hereunder, or at the designated principal
office of said additional paying agents. All such funds held by said additional
paying agents shall be held by each of them in trust and shall constitute a part
of the trust estate and shall be subject to the security interest created
hereby.
Section 6.07. Existence of Issuer. The Issuer covenants that it will at
all times maintain its legal existence and will duly procure any necessary
renewals and extensions thereof; will use its best efforts to maintain, preserve
and renew all the rights, powers, privileges and franchises owned by it; and
will comply with all valid acts, rules, regulations and orders of any
legislative, executive, judicial or administrative body applicable to the
Project.
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture. Any Bond will
be deemed paid for all purposes of this Indenture when (a) payment of the
principal of and interest on the Bond to the due date of such principal and
interest (whether at maturity, upon redemption or otherwise) or the payment of
the purchase price either (1) has been made in accordance with the terms of the
Bonds or (2) has been provided for by depositing with the Trustee in trust (A)
moneys in an amount which are sufficient to make such payment and/or (B)
Government Obligations maturing as to principal and interest in such amounts and
at such times as will insure, without any further reinvestment, the availability
of sufficient moneys to make such payment, and (b) all compensation and
reasonable expenses of the Trustee pertaining to each Bond in respect of which
such deposit is made have been paid or provided for to the Trustee's
satisfaction. When a Bond is deemed paid, it will no longer be secured by or
entitled to the benefits of this Indenture or be an obligation of the Issuer,
and shall be payable solely from the moneys or Government Obligations under
(a)(2) above, except that such Bond may be tendered if and as provided in the
Bonds and it may be registered as transferred, exchanged, registered, discharged
from registration or replaced as provided in Article II.
Notwithstanding the foregoing, upon the deposit of funds or Government
Obligations under clause (a)(2) of the first paragraph of this Section, the
purchase price of tendered Bonds shall be paid from the sale of Bonds under
Section 3.08. If payment of such purchase price is not made from the sale of
Bonds pursuant to Section 3.08, payment shall be made from funds (or Government
Obligations) on deposit pursuant to this Section without the need of any further
instruction or direction by the Company, in which case such Bonds shall be
surrendered to the Trustee and canceled.
Notwithstanding the foregoing, no deposit under clause (a)(2) of the
first paragraph of this Section shall be deemed a payment of a Bond until the
(1) Company has furnished the Trustee an Opinion of Tax Counsel to the effect
that the deposit of such cash or Government Obligations will not cause the Bonds
to become "arbitrage bonds" under Section 148 of the Code and (2) (a) notice of
redemption of the Bond is given in accordance with Article III or, if the Bond
is not to be redeemed or paid within the next 60 days, until the Company has
given the Trustee, in form satisfactory to the Trustee, irrevocable instructions
(i) to notify, as soon as practicable, the owner of the Bond, in accordance with
Article III, that the deposit required by (a)(2) above has been made with the
Trustee and that the Bond is deemed to be paid under this Article and stating
the maturity or redemption date upon which moneys are to be available for the
payment of the principal of the Bond, and premium, if any, and interest on such
Bond, if the Bond is to be redeemed rather than paid and (ii) to give notice of
redemption not less than 30 nor more than 60 days prior to the redemption date
for such Bond or (b) the maturity of the Bond.
When all outstanding Bonds are deemed paid under the foregoing
provisions of this Section, the Trustee will upon request acknowledge the
discharge of the lien of this Indenture, provided, however that the obligations
relating to the tender for purchase as provided in the Bonds and obligations
under Article II in respect of the registration of transfer, exchange,
registration, discharge from registration and replacement of Bonds shall survive
the discharge of the lien of the Indenture.
Section 7.02. Application of Trust Money. The Trustee shall hold in
trust money or Government Obligations deposited with it pursuant to the
preceding Section and shall apply the deposited money and the money from the
Government Obligations in accordance with this Indenture only to the payment of
principal of, premium, if any, and interest on the Bonds and to the payment of
the purchase price of tendered Bonds.
Section 7.03. Repayment to Company. Any excess money or securities held
by the Trustee at any time under this Article and any money held by the Trustee
under any provision of this Indenture for the payment of principal or interest
or for the purchase of Bonds that remains unclaimed for six years shall upon
request be promptly 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 7.04. Satisfaction of the Deed of Trust. At such time as all of
the outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of this Indenture, whichever shall first occur,
and the fees and expenses of the Trustee and any paying agents and all other
amounts payable by the Company under the Agreement and the Note shall have been
paid, the Trustee shall cause the execution and delivery to the Company of such
documents as shall be necessary to effect or evidence the satisfaction,
discharge and cancellation of the Deed of Trust.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default. An "Event of Default" is any of the
following:
(a) Default in the payment of any interest on any Bond when due
and as the same shall become due and payable, which default continues
for five days;
(b) Default in the due and punctual payment of principal on any
Bond when due and payable, whether at maturity, upon redemption, or by
declaration or otherwise;
(c) Default in the due and punctual payment of the purchase price
of any Bond required to be purchased in accordance with its terms; or
(d) An event of default has occurred and is continuing under the
Agreement.
Section 8.02. Acceleration. Upon the occurrence of an Event of Default
the Trustee may, and upon the written request of the holders of not less than
25% in aggregate principal amount of Bonds then outstanding shall, by notice in
writing delivered to the Issuer and the Company, declare the principal of all
Bonds then outstanding and the interest accrued thereon immediately due and
payable; and such principal and interest shall thereupon become and be
immediately due and payable.
If after the principal of the Bonds and the accrued interest thereon
have been so declared to be due and payable, all arrears of interest and
interest on overdue installments of interest (if lawful) and the principal and
premium, if any, on all Bonds then outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable under this
Indenture or upon the Bonds, except the principal of, and interest on, the Bonds
which by such declaration shall have become due and payable, are paid by the
Issuer, and the Issuer also performs all other things in respect of which it may
have been in default hereunder and pays the reasonable charges of the 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.
Section 8.03. Other Remedies. If an Event of Default occurs and is
continuing, subject to Section 8.06, the Trustee, before or after declaring the
principal of the Bonds and the interest accrued thereon immediately due and
payable, may, and upon request of the holders of at least 25% in principal
amount of the Bonds then outstanding shall, pursue any available remedy by
proceeding at law or in equity available to the Trustee under the Agreement, the
Note to collect the principal of or interest on the Bonds or to enforce the
performance of any provision of the Bonds, the Note, this Indenture, the Deed of
Trust or the Agreement.
The Trustee, as the assignee of all the right, title and interest of
the Issuer in and to the Agreement and the Note, may enforce each and every
right granted to the Issuer under the Agreement and the Note. In exercising such
rights and the rights given the Trustee under this Article VIII, the Trustee
shall take such action as, in the judgment of the Trustee applying the standards
described in Section 9.01(a) hereof, would best serve the interests of the
Bondholders.
Section 8.04. Legal Proceeding by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may, and upon the
written request of the holders of not less than 25% in principal amount of all
Bonds then outstanding and receipt of indemnity to its satisfaction shall, in
its own name:
(a) by mandamus, or other suit, action or proceeding at law or in equity,
enforce all rights of the Bondholders, including the right, subject to Section
12.10 hereof, to require the Issuer to enforce any rights under the Agreement
and to require the Issuer to carry out any other provisions of this Indenture
for the benefit of the Bondholder and to perform its duties under the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Issuer to account as if it were
the trustee of an express trust for the Bondholders; or
(d) by action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the rights of the Bondholders.
No remedy conferred upon or reserved to the Trustee or to the
Bondholders by the terms of this Indenture is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and shall be in
addition to any other remedy given to the Trustee or to the Bondholders
hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any
default or Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such default or Event of Default or acquiescence
therein; and every such right and power may be exercised from time to time as
often as may be deemed expedient.
No waiver of any default or Event of Default hereunder, whether by the
Trustee or by the Bondholders, shall extend to or shall affect any subsequent
default or event of default or shall impair any rights or remedies consequent
thereon.
Section 8.05. Appointment of Receivers. Upon the occurrence and
continuance of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the Trustee and of
the Bondholders under this Indenture, the Trustee shall be entitled as a matter
of right to the appointment of a receiver or receivers of the trust estate with
such powers as the court making such appointment shall confer.
Section 8.06. Waiver of Past Defaults. The holders of a majority in
principal amount of the Bonds then outstanding by notice to the Trustee may
waive an existing Event of Default and its consequences. When an Event of
Default is waived, it is cured and stops continuing, but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent to it.
Section 8.07. Control by Majority. The holders of a majority in
principal amount of the Bonds then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to
Section 9.01, that the Trustee determines is unduly prejudicial to the rights of
other Bondholders, or would involve the Trustee in personal liability.
Section 8.08. Limitation on Suits. A Bondholder may not pursue any
remedy with respect to this Indenture or the Bonds unless (a) the holder gives
the Trustee notice stating that an Event of Default is continuing, (b) the
holders of at least 25% in principal amount of the Bonds then outstanding make a
written request to the Trustee to pursue the remedy, (c) such holder or holders
offer to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense and (d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; it being
understood and intended that no one or more holders of the Bonds shall have any
right in any manner whatsoever to affect, disturb or prejudice the lien of this
Indenture by its, his or their action or to enforce any right hereunder except
in the manner herein provided, and that all proceedings at law or in equity
shall be instituted, had and maintained in the manner herein provided and for
the equal and ratable benefit of the holders of all Bonds then outstanding.
Nothing in the Indenture contained shall, however, affect or impair the right of
any Bondholder to enforce the payment of the principal of and premium, if any,
and interest on any Bond at and after the maturity thereof, or the obligation of
the Issuer to pay the principal of and premium, if any, and interest on each of
the Bonds issued hereunder to the respective holders thereof at the time and
place, from the source and in the manner in the Bonds expressed.
A Bondholder may not use this Indenture to prejudice the rights of
another Bondholder or to obtain a preference or priority over the other
Bondholders.
Section 8.09. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any holder to receive payment of
principal of and interest on a Bond, on or after the due dates expressed in the
Bond, or the purchase price of a Bond on or after the date for its purchase as
provided in the Bond, or to bring suit for the enforcement of any such payment
on or after such dates, shall not be impaired or affected without the consent of
the holder.
Section 8.10. Collection Suit by Trustee. If an Event of Default under
Section 8.01(a), (b) or (c) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount remaining unpaid.
Section 8.11. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Bondholders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the holders in any election of a trustee in bankruptcy or other person
performing similar functions. In the event of a bankruptcy or reorganization of
the Company, the Trustee may file a proof of claim on behalf of all Bondholders
with respect to the obligations of the Company pursuant to the Agreement and the
Note.
Section 8.12. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: To the Trustee for amounts to which it is entitled under Section
9.02.
SECOND: To Bondholders for amounts due and unpaid on the Bonds for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Bonds for principal and
interest, respectively.
THIRD: To the Issuer for any amounts due and unpaid to it by the Company
under the Agreement.
FOURTH: To the Company.
The Trustee may fix a payment date for any payment to the Bondholders.
Section 8.13. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Issuer) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a holder pursuant to Section 8.07 or a suit by
holders of more than 10% in principal amount of the Bonds then outstanding.
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts, but
only upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any Event of
Default and after the curing or waiver of all Events of Default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent corporate trustee would exercise or use under
the circumstances in the enforcement of a corporate indenture.
(b) The Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents,
receivers or employees selected by it with reasonable care and the
Trustee shall not be responsible for the conduct of such attorneys,
agents, receivers or employees, if selected with reasonable care, and
shall be entitled to advice of counsel concerning all matters relating
to the trusts hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such attorneys, agents, receivers
and employees as may reasonably be employed in connection with the
trusts hereof. The Trustee may act upon the opinion or advice of any
attorney (who may be the attorney or attorneys for the Issuer or the
Company), approved by the Trustee in the exercise of reasonable care.
The Trustee shall not be responsible for any loss or damage resulting
from any action or inaction in good faith in reliance upon such opinion
or advice.
(c) The Trustee shall not be responsible for any recital
herein, or in the Bonds (except in respect to the certificate of the
Trustee endorsed on the Bonds), or for the recording or re-recording,
filing or re-filing of this Indenture, or any other instrument required
by this Indenture to secure the Bonds, or for insuring the Project or
collecting any insurance moneys, or for validity of the execution by
the Issuer of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
hereby.
(d) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may become the
owner of Bonds secured hereby with the same rights which it would have
if not the Trustee. To the extent permitted by law, the Trustee may
also receive tenders and purchase in good faith Bonds from itself,
including any department, affiliate or subsidiary, with like effect as
if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the owner of any Bond,
shall be conclusive and binding upon all future owners of the same Bond
and upon owners of Bonds issued in exchange therefor or in place
thereof.
(f) As to the existence or non-existence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate signed by the
Issuer or the Company as sufficient evidence of the facts therein
contained; and prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (h) of this Section
9.01, or of which by said subsection it is deemed to have notice, the
Trustee shall also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is necessary
or expedient, but may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to secure
the same. The Trustee may accept a certificate of the Clerk or Deputy
Clerk of the Issuer under the Issuer's seal to the effect that a
resolution in the form therein set forth has been adopted by the Issuer
as conclusive evidence that such resolution has been duly adopted, and
is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and it
shall not be answerable for other than its negligence or willful
default.
(h) The Trustee shall not be required to take notice or be
deemed to have notice of any Event of Default hereunder except failure
by the Issuer to cause to be made any of the payments to the Trustee
required to be made by Article IV hereof, unless the Trustee shall be
specifically notified in writing of such Event of Default by the Issuer
or by the holders of at least 25% in aggregate principal amount of
Bonds then outstanding; and all notices or other instruments required
by this Indenture to be delivered to the Trustee must, in order to be
effective, be delivered at the principal corporate trust office of the
Trustee, and in the absence of such notice so delivered the Trustee may
conclusively assume there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right fully to inspect any and all parts
of the Project, including all books, papers and records of the Issuer
pertaining to the Project and the Bonds and to take such memoranda from
and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee shall have the right, but shall not be required,
to demand, in respect of the authentication of any Bonds, the
withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any showings,
certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee, which the
Trustee in its discretion may deem desirable for the purpose of
establishing the right of the Issuer to the authentication of any
Bonds, the withdrawal of any cash, or the taking of any other action by
the Trustee.
(l) Before taking any action referred to in Section 8.02,
8.03, 8.04, 8.05, 8.07, 8.08, 8.09, 8.10, 8.11 or 9.04 hereunder, the
Trustee may require that satisfactory indemnity be furnished for the
reimbursement of all expenses to which it may be put and to protect it
against all liability, except liability which is adjudicated to have
resulted from its negligence or willful default by reason of any action
so taken.
(m) All moneys received by the Trustee or any paying agent
shall, until used or applied or invested as herein provided, be held in
trust for the purposes for which they were received but need not be
segregated from other funds except to the extent required herein or by
law. Neither the Trustee nor any paying agent shall be under any
liability for interest on any moneys received hereunder except such as
may be mutually agreed upon.
(n) No provision of the Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
Section 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall
be entitled to payment and reimbursement for reasonable fees for its services
rendered hereunder and all advances, counsel fees (including counsel fees
incurred in any bankruptcy proceeding) and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with such services.
Upon an Event of Default, but only upon an Event of Default, the Trustee shall
have a first lien, with right of payment prior to payment on account of
principal of and premium, if any, and interest on any Bond, upon the trust
estate for the foregoing fees, charges and expenses incurred by it.
Section 9.03. Notice to Bondholders if an Event of Default Occurs. If
an Event of Default occurs of which the Trustee is by Section 9.01(h) hereof
required to take notice or if notice of an Event of Default be given as in
Section 9.01(h) provided, then the Trustee shall promptly give written notice
thereof by registered or certified mail to each owner of Bonds then outstanding.
Section 9.04. Intervention by Trustee. In any judicial proceeding to
which the Issuer is a party and which in the opinion of the Trustee and its
counsel has a substantial bearing on the interests of the owners of the Bonds,
the Trustee may intervene on behalf of the Bondholders and shall do so if
requested in writing by the owners of at least 25% of the aggregate principal
amount of Bonds then outstanding. The rights and obligations of the Trustee
under this Section 9.04 are subject to the approval of a court of competent
jurisdiction.
Section 9.05. Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate trust business
and assets as a whole or substantially as a whole or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor
Trustee hereunder and vested with all of the title to the trust estate and all
the trusts, powers, discretions, immunities, privileges and all other matters as
was its predecessor, without the execution or filing of any instrument or any
further act, deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.06. Resignation by Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by giving thirty
days' written notice to the Issuer and the Company, served personally or sent by
registered or certified mail, and to each owner of Bonds then outstanding, sent
by registered or certified mail, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a successor Trustee
pursuant to Section 9.08 hereof.
Section 9.07. Removal of Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer and the Company, and signed by the owners of a
majority in aggregate principal amount of Bonds then outstanding.
Section 9.08. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder,
or in case it shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor shall be appointed
by the Issuer at the direction of the Company. The Issuer shall cause notice of
such appointment to be given in the same manner as the giving of notices of
redemption as set forth in Section 3.04 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the owners of a majority
in aggregate principal amount of Bonds then outstanding. Every such successor
Trustee appointed pursuant to the provisions of this Section 9.08 shall be a
trust company or bank in good standing having a reported capital, surplus and
undivided profits of not less than $25,000,000, if there be such an institution
willing, qualified and able to accept the trusts upon reasonable and customary
terms.
Section 9.09. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all of the estates, properties,
rights, powers, trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Issuer, or of its
successor, execute and deliver an instrument transferring to such successor
Trustee all the estates, properties, rights, powers and trusts of such
predecessor hereunder, and every predecessor Trustee shall deliver all
securities and moneys held by it as Trustee hereunder to its successor. Should
any instrument in writing from the Issuer be required by any successor Trustee
for more fully and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the predecessor, any
and all such instruments in writing shall, on request, be executed, acknowledged
and delivered by the Issuer. The resignation of any Trustee and the instrument
or instruments removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article IX, shall be
filed and/or recorded by the successor Trustee in each recording office where
the Indenture shall have been filed and/or recorded and the successor Trustee
shall bear the cost thereof.
Section 9.10. Successor Trustee as Bond Registrar and Paying Agent. In
the event of a change of Trustee, the Trustee which has resigned or been removed
shall cease to be bond registrar and a paying agent for principal of and
premium, if any, and interest on the Bonds, and the successor Trustee shall
become such bond registrar and a paying agent.
Section 9.11. Trustee and Issuer Required to Accept Directions and
Actions of Company. Whenever, after a reasonable request by the Company, the
Issuer shall fail, refuse or neglect to give any direction to the Trustee or to
require the Trustee to take any action which the Issuer is required to have the
Trustee take pursuant to the provisions of the Agreement or this Indenture, the
Company 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 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
may to the extent permitted by law, perform any and all acts or take such action
as may be necessary for and on behalf of the Issuer to prevent or correct said
Event of Default and the Trustee shall take or accept such performance by the
Company as performance by the Issuer in such event.
The Issuer hereby makes, constitutes and appoints the Company
irrevocably as its agent to give all directions, do all things and perform all
acts provided, and to the extent so provided, by this Section 9.11.
Section 9.12. No Transfer of Note or the Deed of Trust Held by the
Trustee; Exception. Except as required to effect an assignment to a successor
Trustee, the Trustee shall not sell, assign or transfer the Note or the Deed of
Trust and the Trustee is authorized to enter into an agreement with the Company
to such effect.
Section 9.13. Filing of Certain Continuation Statements. From time to
time, the Trustee shall duly file, or cause to be filed, at the expense of the
Company, continuation statements for the purpose of continuing without lapse the
effectiveness of the filing of the financing statements with respect to the
security interest created by this Indenture in the Agreement and the Note, at or
prior to the issuance of the Bonds and any previously filed continuation
statements which shall have been filed as herein required. The Issuer shall sign
and deliver to the Trustee or its designee such continuation statements as may
be requested of it from time to time by the Trustee. Upon the filing of any such
continuation statements the Trustee shall immediately notify the Issuer and the
Company that the same has been accomplished.
Section 9.14 Duties of Remarketing Agent. The Remarketing Agent will
set the interest rates on the Bonds and perform the other duties provided for in
Section 2.02 and will remarket the Bonds as provided in Section 3.08, subject to
any provisions of a remarketing agreement between the Company and the
Remarketing Agent. The Remarketing Agent may for its own account or as broker or
agent for others deal in Bonds and may do anything any other Bondholder may do
to the same extent as if the Remarketing Agent were not serving as such.
Section 9.15 Eligibility of Remarketing Agent. The initial Remarketing
Agent appointed under this Indenture is SunTrust Bank, Atlanta. The Remarketing
Agent will be a bank, trust company or member of the National Association of
Securities Dealers, Inc. organized and doing business under the laws of the
United States or any state or the District of Columbia, will have a combined
capital stock, surplus and undivided profits of at least $15,000,000 as shown in
its most recent published annual report, will be a Participant in the Securities
Depository and will be authorized by law to perform all the duties imposed upon
it by this Indenture. Any successor Remarketing Agent shall be rated at least
Baa3/P-3 or otherwise qualified by Moody's Investors Service, Inc. or have an
equivalent rating of another rating agency.
Section 9.16 Replacement of Remarketing Agent. The Remarketing Agent
may resign by notifying the Issuer, Trustee and Company. Such resignation will
take effect on the day a successor Remarketing Agent appointed in accordance
with this Section has accepted the appointment or, if no successor has so
accepted, 30 days after notice of resignation has been sent. The Company may
remove the Remarketing Agent at any time by an instrument signed by the Company
and filed with the Remarketing Agent, the Issuer and the Trustee at least 30
days prior to the effective date of such removal (which will not in any event
occur prior to the appointment of a successor Remarketing Agent). A new
Remarketing Agent may be appointed by the Company upon the resignation or
removal of the Remarketing Agent. The Trustee shall promptly notify the
Bondholders of any change in the Remarketing Agent.
Section 9.17. Compensation of Remarketing Agent. The Remarketing Agent
will not be entitled to any compensation from the Issuer, the Trustee or any
property held under this Indenture but must make separate arrangements with the
Company for compensation.
Section 9.18. Successor Remarketing Agent. If the Remarketing Agent
consolidates with, merges or converts into, or transfers all or substantially
all its assets (or, in the case of a bank or trust company, its corporate trust
assets) to another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Remarketing Agent,
provided that such successor shall be eligible under the applicable provisions
in this Article.
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders. The Issuer and the Trustee
may amend or supplement this Indenture or the Bonds without notice to or consent
of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal defect or
omission,
(b) to grant to the Trustee for the benefit of the Bondholders
additional rights, remedies, powers or authority,
(c) to subject to this Indenture additional collateral or to add
other agreements of the Issuer,
(d) to modify this Indenture or the Bonds to permit qualification
under the Trust Indenture Act of 1939, as amended, or any similar
federal statute at the time in effect, or to permit the qualification
of the Bonds for sale under the securities laws of any state of the
United States,
(e) to authorize different authorized denominations of the Bonds
and to make correlative amendments and modifications to this Indenture
regarding exchangeability of Bonds of different authorized
denominations, redemptions of portions of Bonds of particular
authorized denominations and similar amendments and modifications of a
technical nature,
(f) to increase or decrease the number of days specified for the
giving of notices in Section 2.02 and to make corresponding changes to
the period for notice of redemption of the Bonds; provided that no
decreases in any such number of days shall become effective except
while the Bonds bear interest at a Daily Rate or a Weekly Rate and
until 30 days after the Trustee has given notice to the owners of the
Bonds,
(g) to provide for an uncertificated system of registering the
Bonds or to provide for the change to or from a Book-Entry System for
the Bonds,
(h) to evidence the succession of a new Trustee or the
appointment by the Trustee or the Issuer of a co-trustee, or
(i) to make any change (including a change in Section 4.01 to
reflect any amendment to the Code or interpretations by the Internal
Revenue Service of the Code) that does not materially adversely affect
the rights of any Bondholder.
Section 10.02. With Consent of Bondholders. If an amendment of or
supplement to this Indenture or the Bonds without any consent of Bondholders is
not permitted by the preceding Section, the Issuer and the Trustee may enter
into such amendment or supplement without prior notice to any Bondholders but
with the consent of the holders of at least a majority in aggregate principal
amount of the Bonds then outstanding. However, without the consent of each
Bondholder affected, no amendment or supplement may (a) extend the maturity of
the principal of, or interest on, any Bond, (b) reduce the principal amount of,
or rate of interest on, any Bond, (c) effect a privilege or priority of any Bond
or Bonds over any other Bond or Bonds, (d) reduce the percentage of the
principal amount of the Bonds required for consent to such amendment or
supplement, (e) impair the exclusion from federal gross income of interest on
any Bond, (f) eliminate the holders' rights to tender the Bonds, or any
mandatory redemption of the Bonds, extend the due date for the purchase of Bonds
tendered by the holders thereof or call for mandatory redemption or reduce the
purchase or redemption price of such Bonds, (g) create a lien ranking prior to
or on a parity with the lien of this Indenture on the property described in the
Granting Clause of this Indenture or (h) deprive any Bondholder of the lien
created by this Indenture on such property. In addition, if moneys or Government
Obligations have been deposited or set aside with the Trustee pursuant to
Article VII for the payment of Bonds and those Bonds shall not have in fact been
actually paid in full, no amendment to the provisions of that Article shall be
made without the consent of the holder of each of those Bonds affected.
Section 10.03. Effect of Consents. Any consent received pursuant to
Section 10.02 will bind each Bondholder delivering such consent and each
subsequent holder of a Bond or portion of a Bond evidencing the same debt as the
consenting holder's Bond.
Section 10.04. Notation on or Exchange of Bonds. If an amendment or
supplement changes the terms of a Bond, the Trustee may require the holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Bond about the changed terms and return it to the holder. Alternatively, if the
Trustee, the Issuer and the Company determine, the Issuer in exchange for the
Bond will issue and the Trustee will authenticate a new Bond that reflects the
changed terms.
Section 10.05. Signing by Trustee of Amendments and Supplements. The
Trustee will sign any amendment or supplement to the Indenture or the Bonds
authorized by this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing an amendment or supplement,
the Trustee will be entitled to receive and (subject to Section 9.01) will be
fully protected in relying on an Opinion of Counsel stating that such amendment
or supplement is authorized by this Indenture.
Section 10.06. Company Consent Required. An amendment or supplement to this
Indenture or the Bonds shall not become effective unless the Company delivers to
the Trustee its written consent to the amendment or supplement.
Section 10.07. Notice to Bondholders. The Trustee shall cause notice of
the execution of each supplement or amendment to this Indenture or the Agreement
to be mailed to the Bondholders. The notice will at the option of the Trustee,
either (i) briefly state the nature of the amendment or supplement and that
copies of it are on file with the Trustee for inspection by Bondholders or (ii)
enclose a copy of such amendment or supplement.
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
Section 11.01. Without Consent of Bondholders. The Issuer may enter
into, and the Trustee may consent to, any amendment of or supplement to the
Agreement or the Note, or may waive compliance by the Company of any provision
of the Agreement or the Note, in each case without notice to or consent of any
Bondholder, if the amendment, supplement or waiver is required or permitted (a)
by the provisions of the Agreement or this Indenture, (b) to cure any ambiguity,
inconsistency or formal defect or omission, (c) to identify more precisely the
Project, (d) in connection with any authorized amendment of or supplement to
this Indenture or (e) to make any change that in the judgment of the Trustee
does not materially adversely affect the rights of any Bondholder.
Section 11.02. With Consent of Bondholders. If an amendment of or
supplement to the Agreement or the Note without any consent of Bondholders is
not permitted by the foregoing Section, the Issuer may enter into, and/or the
Trustee may consent to (as the case may be), such amendment or supplement, or
may waive compliance by the Company of any provision of the Agreement, without
notice to any Bondholder but with the consent of the holders of at least a
majority in aggregate principal amount of the Bonds then outstanding. However,
without the consent of each Bondholder affected thereby, no amendment,
supplement or waiver may result in anything described in the lettered clauses of
Section 10.02.
Section 11.03. Consents by Trustee to Amendments or Supplements. The
Trustee will consent to any amendment or supplement to the Agreement or the Note
authorized by this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing a consent to an amendment or
supplement, the Trustee shall be entitled to receive and (subject to Section
9.01) shall be fully protected in relying on an Opinion of Counsel stating that
such amendment or supplement is authorized or permitted by this Indenture.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Notices. (a) Any notice, request, direction, designation,
consent, acknowledgment, certification, appointment, waiver or other
communication required or permitted by this Indenture or the Bonds must be in
writing except as expressly provided otherwise in this Indenture or the Bonds.
(b) Any notice or other communication shall be sufficiently given and
deemed given when delivered by hand or mailed by first-class mail, postage
prepaid, addressed as follows: if to the Issuer, to the Chairman of the Board of
Commissioners, Jackson County Administration Building, Marianna, Florida 32446;
if to the Trustee, to First Union National Bank, at 225 Water Street, 3rd Floor,
Jacksonville, Florida 32202, Attention: Corporate Trust Department; if to the
Company, at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention:
Treasurer, with copies to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Corporate Finance Department; and if to
the Remarketing Agent, to SunTrust Bank, Atlanta, 303 Peachtree Street, 23rd
Floor, Atlanta, Georgia 30308, Attention: Municipal Desk. Any addressee may
designate additional or different addresses for purposes of this Section.
Section 12.02. Bondholders' Consents. Any consent or other instrument
required by this Indenture to be signed by Bondholders may be in any number of
concurrent documents and may be signed by a Bondholder or by the holder's agent
appointed in writing. Proof of the execution of such instrument or of the
instrument appointing an agent and of the ownership of Bonds, if made in the
following manner, shall be conclusive for any purposes of this Indenture with
regard to any action taken by the Trustee under the instrument:
(a) The fact and date of a person's signing an instrument may
be proved by the certificate of any officer in any jurisdiction who by
law has power to take acknowledgments within that jurisdiction that the
person signing the writing acknowledged before the officer the
execution of the writing, or by an affidavit of any witness to the
signing.
(b) The fact of ownership of Bonds, the amount or amounts,
numbers and other identification of such Bonds and the date of holding
shall be proved by the registration books kept pursuant to this
Indenture.
In determining whether the holders of the required principal amount of
Bonds outstanding have taken any action under this Indenture, Bonds owned by the
Company or any person controlling, controlled by or under common control with
the Company shall be disregarded and deemed not to be outstanding. In
determining whether the Trustee shall be protected in relying on any such
action, only Bonds which the Trustee knows to be so owned shall be disregarded.
Any consent or other instrument shall be irrevocable and shall bind any
subsequent owner of such Bond or any Bond delivered in substitution therefor.
Section 12.03. Appointment of Separate Paying Agent and/or Tender
Agent. If, at any time, the Securities Depository ceases to hold the Bonds, with
the effect that the Bonds are no longer subject to the Book-Entry System, then
the Issuer and the Trustee, acting at the request of the Company, may appoint
one or more banks or trust companies to act as paying agent and/or tender agent
for the Bonds hereunder. Any such paying agent or tender agent shall be a bank
or trust company organized under the laws of the United States of America or any
state thereof, shall have a reported capital and surplus of at least
$100,000,000 and a corporate trust office located in New York, New York at which
Bonds may be presented for payment or purchase and shall perform such duties and
responsibilities as may be delegated to it hereunder. If such a paying agent or
tender agent is appointed, then all references herein to the "Trustee" shall
include such paying agent or tender agent to the extent of the duties performed
by such entity.
Section 12.04. Limitation of Rights. Nothing expressed or implied in
this Indenture or the Bonds shall give any person other than the Trustee,
Issuer, Company, Remarketing Agent and the Bondholders any right, remedy or
claim under or with respect to this Indenture.
Section 12.05. Severability. If any provision of this Indenture shall
be held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative or unenforceable to any
extent whatsoever.
Section 12.06. Payments Due on Non-Business Days. If a payment date is
not a Business Day at the place of payment, then payment may be made at that
place on the next Business Day, and no interest shall accrue for the intervening
period.
Section 12.07. Governing Law. This Indenture shall be governed exclusively
by and construed in accordance with the applicable laws of the State.
Section 12.08. Captions. The captions in this Indenture are for convenience
only and do not define or limit the scope or intent of any provisions or
Sections of this Indenture.
Section 12.09. No Liability of Officers. No covenant or agreement
contained in the Bonds or this Indenture shall be deemed to be a covenant or
agreement of any commissioner, agent or employee of the Issuer in his individual
capacity, and neither the officers of the Issuer nor any official executing the
Bonds or this Indenture shall be liable personally on the Bonds or be subject to
any personal liability or accountability by reason of the issuance of the Bonds
or the execution, delivery and performance of this Indenture.
Section 12.10. Limitation upon Responsibility of the Issuer. (a)
Notwithstanding anything to the contrary contained herein or in any of the
Bonds, the Agreement or in any other instrument or document executed by or on
behalf of the Issuer in connection herewith, (i) the Issuer shall have no
obligation to take action under this Indenture, the Bonds, the Agreement or such
other instruments or documents, unless Issuer is reasonably requested in writing
by an appropriate person to take such action and is provided with indemnity and
assurances reasonably satisfactory to it of payment of or reimbursement for any
expenses (including attorneys' fees) in such action, and (ii) any judgment
rendered against the Issuer for breach of its obligations hereunder or under the
Bonds, the Agreement or such instruments or documents, shall be payable solely
from the revenues derived by the Issuer hereunder or under the Agreement or the
Note, and no personal liability or charge payable directly or indirectly from
the general funds of the Issuer shall arise therefrom.
(b) The Issuer shall not be required to incur any expense with respect
to the Project or the Bonds unless requested to do so by the Company, in which
event the Company hereby agrees to reimburse the full amount of such expense to
the Issuer, and the Issuer may require payment to it of such amount as a
prerequisite to its incurring any such expense.
(c) In acting under this Indenture, the Bonds, the Agreement, the Note
or such other instruments or documents, or in refraining from taking such
action, the Issuer may conclusively rely on the advice of its counsel.
Section 12.11 Counterparts. This Indenture may be signed in several
counterparts. Each will be an original, but all of them together constitute the
same instrument.
<PAGE>
IN WITNESS WHEREOF, Jackson County, Florida has caused these presents
to be signed in its name and behalf by the Chairman or Vice Chairman of its
Board of County Commissioners, and its official seal to be hereunto affixed and
attested by its Clerk or Deputy Clerk, and to evidence its acceptance of the
trusts hereby created First Union National 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.
[SEAL] JACKSON COUNTY, FLORIDA
By:
Chairman of the Jackson County
Board of County Commissioners
Attest:
Clerk of the Jackson County
Board of County Commissioners
FIRST UNION NATIONAL BANK, as Trustee
[SEAL] By:
Title:
<PAGE>
Attachment A
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co. has an interest herein.
UNITED STATES OF AMERICA
STATE OF FLORIDA
No. R-1 $3,930,000
JACKSON COUNTY, FLORIDA
POLLUTION CONTROL REVENUE REFUNDING BOND
(GULF POWER COMPANY PROJECT)
SERIES 1997
TYPE OF INTEREST
MATURITY DATE DATED DATE CUSIP RATE PERIOD
July 1, 2022 July 1, 1997 466745AC0 Daily
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: $3,930,000
Jackson County, Florida (the "Issuer"), a "local agency" as defined in
the Florida Industrial Development Financing Act, being Part II of Chapter 159,
Florida Statutes, Sections 159.25 through 159.431, and a political subdivision
of the State of Florida, for value received, hereby promises to pay, solely from
the sources described in this Bond, to the Registered Owner identified above, or
registered assigns, on the Maturity Date stated above (or if this Bond is called
for earlier redemption as described herein, on the redemption date) the
principal amount identified above and to pay interest as provided in this Bond.
1. Indenture; Agreement. This Bond is one of the bonds (the "Bonds"),
limited to $3,930,000 in principal amount, issued under the Trust Indenture
dated as of July 1, 1997 (the "Indenture"), between the Issuer and First Union
National Bank, as trustee (the "Trustee"). The terms of the Bonds include those
in the Indenture. Bondholders are referred to the Indenture for a statement of
those terms. When used with reference to the Bonds, the term "principal"
includes any premium payable on those Bonds. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Indenture.
The Issuer has entered into a Loan Agreement dated as of July 1, 1997
(the "Agreement") with Gulf Power Company, a corporation organized and existing
under the laws of the State of Maine and qualified and doing business as an
electric utility in the State of Florida (the "Company"). Under the provisions
of the Agreement, the Issuer has loaned the proceeds of the Bonds of this series
to the Company (the "Loan"). In order to evidence the Loan and the Company's
obligation to repay the same, the Company has executed and delivered its
non-negotiable promissory note (the "Note"). The Note provides for the repayment
by the Company of the Loan, including interest thereon, in installments
sufficient to pay the principal of, purchase price and premium, if any, and
interest on the Bonds as the same shall become due and payable, and the
Agreement further obligates the Company to pay the cost of operating,
maintaining and repairing the Project (as hereinafter defined). The Note
provides that the payments thereunder shall be paid directly to the Trustee as
assignee of the Issuer. The Issuer has assigned its rights to such payments
under the Agreement and the Note to the Trustee as security for the Bonds. The
proceeds of the Bonds will be used to refund certain outstanding revenue bonds
issued to refinance the interest of the Company in certain air and water
pollution control and sewage and solid waste disposal facilities (the "Project")
located at the Scholz steam electric generating plant (the "Plant") in Jackson
County, Florida.
The Indenture, the Agreement and the Note may be amended, and
references to them include any amendments.
The Issuer has established a book-entry only system of registration for
the Bonds (the "Book-Entry System"). Except as specifically provided otherwise
in the Indenture, a Securities Depository (or its nominee) will be the
registered owner of this Bond. By acceptance of a confirmation of purchase,
delivery or transfer, the Beneficial Owner (if any) of this Bond shall be deemed
to have agreed to this arrangement. If the Securities Depository (or its
nominee) is the registered owner of this Bond, it shall be treated as the owner
of it for all purposes.
2. Source of Payments. The principal of, premium, if any, and interest
on the Bonds are limited special obligations of the Issuer and, as provided in
the Indenture, are payable solely and only from payments derived from the
Agreement, the Note and from any other moneys held by the Trustee under the
Indenture for such purpose. The Bonds are issued pursuant to and in full
compliance with the Constitution and laws of the State of Florida, particularly
Florida Industrial Development Financing Act, being Part II of Chapter 159,
Florida Statutes, Sections 159.25 through 159.431, as amended, and pursuant to
resolutions adopted by the Issuer on June 19, 1997, which resolutions authorize
the execution and delivery of the Agreement and the Indenture. The Bonds and the
interest thereon are limited special obligations of the Issuer and are payable
solely from the revenues and other amounts derived from the Agreement and the
Note and are secured as set forth in the Indenture. The Bonds and premium, if
any, and interest thereon shall not be deemed to constitute a debt or general
obligation or a pledge of the faith and credit of the State of Florida or any
political subdivision thereof, including the County of Jackson. Neither the
State of Florida nor any political subdivision thereof nor the Issuer shall be
obligated to pay the principal of the Bonds or premium, if any, or interest
thereon or other costs incident thereto except from the revenues and receipts
pledged therefor, and neither the faith and credit nor the taxing power of the
State of Florida or any political subdivision thereof is pledged to the payment
of the principal of the Bonds or premium, if any, or interest thereon or other
costs incident thereto. Payments under the Note sufficient for the prompt
payment when due of the principal of and premium, if any, and interest on the
Bonds are to be paid to the Trustee by the Company for the account of the Issuer
and deposited in a special trust account created by the Issuer and have been
duly pledged and assigned for that purpose. In addition, substantially all other
rights of the Issuer under the Agreement have also been assigned to the Trustee
to secure payment of the principal of and premium, if any, and interest on the
Bonds issued under the Indenture.
3. Interest Rate. Interest on this Bond will be paid at the lesser of
(a) a Daily Rate, a Weekly Rate, a Commercial Paper Rate or a Long-Term Interest
Rate as selected by the Company and as determined in accordance with the
Indenture and (b) 15%. Interest will initially be payable at a Daily Rate as set
forth in the Indenture. The Company may change the interest rate determination
method from time to time. A change in the method will result in mandatory
redemption or purchase of the Bonds (see "Redemptions" below). While there
exists an Event of Default under the Indenture, the interest rate on the Bonds
will be the rate on the Bonds on the day before the Event of Default occurred,
except that if interest on any Bond was then payable at a Commercial Paper Rate,
the interest rate for all Bonds then bearing interest at a Commercial Paper Rate
will be the highest Commercial Paper Rate then in effect for any Bond.
When interest is payable at a Daily, Weekly or Commercial Paper Rate,
it will be computed on the basis of the actual number of days elapsed over a
year of 365 days (366 in leap years), and when payable at a Long-Term Interest
Rate on the basis of a 360-day year of twelve 30-day months. Interest on overdue
principal and, to the extent lawful, on overdue premium and interest will be
payable at the rate on the Bonds on the day before the default occurred.
4. Interest Payment and Record Dates. Interest will accrue on the
unpaid portion of the principal of this Bond from the Dated Date stated above
and thereafter from the Interest Payment Date (as hereinafter defined) next
preceding the date of authentication hereof to which interest has been paid or
duly provided for, unless the date of authentication hereof is an Interest
Payment Date to which interest has been paid or duly provided for, in which case
from the date of authentication hereof, or unless no interest has been paid or
duly provided for on the Bonds of this series, in which case from said Dated
Date; provided, however, that if the date of authentication is between the
Record Date (as hereinafter defined) for any Interest Payment Date and such
Interest Payment Date, then interest will accrue from such Interest Payment Date
or, if the Company shall default in payment of the interest due on such Interest
Payment Date, then from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or if no interest has been paid or
duly provided for, then from said Dated Date. When interest is payable at the
rate in the first column below, interest accrued during the period (an "Interest
Period") shown in the second column will be paid on the date (an "Interest
Payment Date") in the third column to holders of record on the date (a "Record
Date") in the fourth column:
INTEREST INTEREST
RATE ACCRUAL PERIOD PAYMENT DATE RECORD DATE
Daily* Calendar month Fifth Business Day Last Business Day
of the next month of the month
Weekly* Calendar month First Business Day Last Business Day
of the next month before Interest
Payment Date
Commercial From 1 to 365 days Day after the last Last Business Day
Paper as determined for day of Commercial before Interest
each Bond pursuant to Paper Period Payment Date
Section 2.02(a)(3) of
the Indenture
("Commercial Paper
Period")
Long-Term** Six-month period or Next day (January 1 Fifteenth of the
portion thereof or July 1) month before the
ending the last day Interest Payment
of December or Date (December 15 or
June June 15)***
* If there shall be a change from a Daily Rate or a Weekly Rate on a day other
than the first day of a calendar month, the then current Interest Period
relating to such Daily Rate or Weekly Rate shall end on the day immediately
preceding the date on which the new interest rate on the Bonds shall become
effective, which date in the case of a change from a Weekly Rate, shall be the
Interest Payment Date for such Interest Period, for which the Record Date shall
be the immediately preceding Business Day; but in the case of a change from a
Daily Rate, the Interest Payment Date for such Interest Period shall be the
fifth Business Day after the last day of such Interest Period, for which the
Record Date shall be the last Business Day of such Interest Period. If such new
interest rate shall be a Daily Rate or a Weekly Rate, the first Interest Period
relating thereto shall begin on the effective date of such new interest rate and
end on the last day of the then current calendar month, for which the Interest
Payment Date and the Record Date shall be as prescribed in this Table.
** If there shall be a change from a Long-Term Interest Rate on a day other than
the day after the last day of the then current Long-Term Interest Rate Period,
or if there shall be an early termination of such Long-Term Interest Rate Period
and a new Long-Term Interest Rate shall be set, such Long-Term Interest Rate
Period shall end on the day immediately preceding the date on which the new
interest rate shall become effective, which date shall be the Interest Payment
Date for such Long-Term Interest Rate Period, for which the Record Date shall be
15 days prior to such Interest Payment Date or, if sooner, the first day of such
Long-Term Interest Rate Period. If such new interest rate shall be a Daily Rate
or a Weekly Rate, the first Interest Period relating thereto shall begin on the
effective date of such new interest rate and end on the last day of the then
current calendar month, for which the Interest Payment Date and the Record Date
shall be as prescribed in this Table.
*** If an Interest Payment Date occurs less than 15 days after the first day of
a Long-Term Interest Rate Period, the first day of such Long-Term Interest Rate
Period is the Record Date for such Interest Payment Date.
"Business Day" is defined in the Indenture. Payment of defaulted interest will
be made to holders of record as of the fifth-to-last Business Day before
payment.
5. Method of Payment. Holders must surrender Bonds to the Trustee to
collect principal at maturity or upon redemption. (See "Tenders" below for the
payment of purchase price of tendered Bonds.) Interest on Bonds bearing interest
at a Commercial Paper Rate is payable only upon presentation of such Bonds to
the Trustee. Interest on Bonds bearing interest at a Daily, Weekly or Long-Term
Interest Rate will be paid to the registered holder hereof as of the Record Date
by check mailed by first-class mail on the Interest Payment Date to such
holder's registered address. A holder of $1,000,000 or more in principal amount
of Bonds may be paid interest at a Daily, Weekly or Commercial Paper Rate by
wire transfer in immediately available funds to an account in the continental
United States if the holder makes a written request of the Trustee (in form
satisfactory to the Trustee) at least two Business Days before the Record Date
specifying the account address. The notice may provide that it will remain in
effect for later interest payments until changed or revoked by another written
notice. Principal and interest will be paid in money of the United States that
at the time of payment is legal tender for payment of public and private debts
or by checks or wire transfers payable in such money. If any payment on the
Bonds is due on a non-Business Day, it will be made on the next Business Day,
and no interest will accrue as a result.
6. Tenders. "Tender" means to require, or the act of requiring, the
Trustee to purchase a Bond at the holder's option under the provisions of this
Section 6 at 100% of the principal amount plus interest accrued to the date of
purchase. During a Daily Rate Period, if a Bond is tendered after the Record
Date and before the Interest Payment Date for that Interest Period, the Trustee
will pay (but only from funds available therefor as provided in the Indenture) a
purchase price of principal plus interest accruing after the last day of that
Interest Period. The holder will receive interest for that Interest Period by
check or wire transfer as described in Section 5 above.
Daily Rate Tender. When interest on the Bonds is payable at a Daily
Rate and a Book-Entry System is in effect, a Beneficial Owner (through its
direct Participant in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable written notice or an
irrevocable telephone notice, promptly confirmed in writing, to the Trustee (any
such telephone notice to be delivered to a trust officer of the Trustee) and an
irrevocable notice by telephone, telegraph or facsimile transmission to the
Remarketing Agent, in each case by 11:00 a.m., New York City time, on a Business
Day, stating the principal amount of the Bond (or portion of Bond) being
tendered, payment instructions for the purchase price and the Business Day
(which may be the date the notice is delivered) the Bond (or portion of Bond) is
to be purchased. The Beneficial Owner shall effect delivery of such Bonds by
causing such direct Participant to transfer its interest in the Bonds equal to
such Beneficial Owner's interest on the records of the Securities Depository to
the participant account of the Trustee with the Securities Depository. Any
notice received by the Trustee after 11:00 a.m., New York City time, shall be
deemed to have been given on the next Business Day.
When interest on the Bonds is payable at a Daily Rate and a Book-Entry
System is not in effect, a holder of a Bond may tender the Bond (or portion of
Bond) by delivering the notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the Bond to the Trustee
by 1:00 p.m., New York City time, on the date of purchase (see additional
requirements below).
Weekly Rate Tender. When interest on the Bonds is payable at a Weekly
Rate and a Book-Entry System is in effect, a Beneficial Owner (through its
direct Participant in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable written notice or an
irrevocable telephone notice, promptly confirmed in writing, to the Trustee (any
such telephone notice to be delivered to a trust officer of the Trustee) and an
irrevocable notice by telephone, telegraph or facsimile transmission to the
Remarketing Agent, in each case prior to 5:00 p.m., New York City time on a
Business Day stating the principal amount of the Bond (or portion of Bond) being
tendered, payment instructions for the purchase price, and the date, which must
be a Business Day at least seven days after the notice is delivered, on which
the Bond (or portion of Bond) is to be purchased. The Beneficial Owner shall
effect delivery of such Bonds by causing such direct Participant to transfer its
interest in the Bonds equal to such Beneficial Owner's interest on the records
of the Securities Depository to the participant account of the Trustee with the
Securities Depository.
When interest on the Bonds is payable at a Weekly Rate and a Book-Entry
System is not in effect, a holder of a Bond may tender the Bond (or portion of
Bond) by delivering the notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the Bond to the Trustee
by 1:00 p.m., New York City time, on the date of purchase (see additional
requirements below).
Payment of Purchase Price. The purchase price for a tendered Bond will
be paid in immediately available funds to the registered owner of the Bond by
the close of business on the date of purchase.
7. Delivery Address; Additional Delivery Requirements. Notices in respect
of tenders and Bonds tendered must be delivered to the Trustee as follows:
First Union National Bank
225 Water Street, 3rd Floor
Jacksonville, Florida 32202
Attention: Corporate Trust Department
Telephone: (904) 361-3174
Fax: (904) 361-7735
Notices in respect of tenders shall be delivered to the Remarketing
Agent as follows:
SunTrust Bank, Atlanta
303 Peachtree Street, 23rd Floor
Atlanta, Georgia 30308
Attention: Municipal Desk
Telephone: (404) 588-7981
Fax: (404) 724-3219
The delivery addresses or telephone numbers of the Trustee or the Remarketing
Agent may be changed by notice mailed by first class mail to the Bondholders at
their registered addresses.
All tendered Bonds must be accompanied by an instrument of transfer
satisfactory to the Trustee, executed in blank by the registered owner or his
duly authorized attorney, with the signature guaranteed by an eligible guarantor
institution.
Limitation on Tenders. No Bonds may be tendered while they bear
interest at a Commercial Paper Rate or a Long-Term Interest Rate.
Irrevocable Notice Deemed to be Tender of Bond; Undelivered Bonds. The
giving of notice by the registered owner of a Bond as provided in Section 6
constitutes the irrevocable tender for purchase of each Bond (or portion) with
respect to which such notice was given, irrespective of whether such Bond was
delivered as provided in Section 6. The determination of the Trustee as to
whether a notice of tender has been properly delivered shall be conclusive and
binding upon the Bondholders.
The Trustee may refuse to accept delivery of any Bond for which a
proper instrument of transfer has not been provided. If any owner of a Bond who
gave notice fails to deliver his Bond to the Trustee at the place and on the
applicable date and time specified, or fails to deliver his Bond properly
endorsed, his Bond shall constitute an undelivered Bond as described in the
Indenture. BY ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL AND SURRENDER
THIS BOND, PROPERLY ENDORSED, TO THE TRUSTEE AFTER THE GIVING OF IRREVOCABLE
NOTICE OF TENDER FOR PURCHASE AS DESCRIBED ABOVE.
8. Redemptions. As provided below, the Company has the right to
purchase Bonds in lieu of certain redemptions. BY ACCEPTANCE OF THIS BOND, THE
OWNER AGREES TO SELL AND SURRENDER THIS BOND, PROPERLY ENDORSED, TO THE COMPANY
IN LIEU OF REDEMPTION UNDER THE CONDITIONS DESCRIBED BELOW. All redemptions and
purchases in lieu of redemption will be made in funds immediately available on
the redemption or purchase date and will be at a redemption or purchase price of
100% of the principal amount of the Bonds being redeemed or purchased (unless a
premium is required as provided below) plus interest accrued to the redemption
or purchase date, except that interest accruing at a Daily Rate will be paid on
the fifth Business Day following the redemption or purchase date. Bonds tendered
for purchase on a date after a call for redemption but before the redemption
date will be purchased pursuant to the tender. No purchase of Bonds by the
Company or advance use of any funds to effectuate any such purchase shall be
deemed to be a payment or redemption of the Bonds or of any portion thereof and
such purchase will not operate to extinguish or discharge the indebtedness
evidenced by such Bonds.
Optional Redemption at a Premium During Long-Term Interest Rate Period.
During any Long-Term Interest Rate Period, if the Long-Term Interest Rate Period
is less than or equal to five years, the Bonds will not be redeemable pursuant
to this provision during the Long-Term Interest Rate Period.
If the Long-Term Interest Rate Period is greater than five years, the
Bonds will not be redeemable for five years after the date on which the Bonds
begin to bear interest at the Long-Term Interest Rate. After the five year
no-call period, the Bonds may be redeemed or purchased by the Company in lieu of
redemption at any time in whole or in part at 102% of their principal amount.
The premium will decline every year on the anniversary of the date on which the
Bonds begin to bear interest at the Long-Term Interest Rate, by one percentage
point until the Bonds are redeemable without premium.
As an alternative to and in lieu of the foregoing redemption
provisions, if, with respect to any Long-Term Interest Rate Period, a Favorable
Opinion of Tax Counsel is delivered to the Trustee not later than the date of
the establishment of such Long-Term Interest Rate Period, the Bonds may be
redeemed or purchased by the Company in lieu of redemption during such Long-Term
Interest Rate Period at the option of the Company in whole or in part at any
time after a no-call period, if any, established by the Remarketing Agent, at
the percentages of their principal amount, plus accrued interest, as follows:
the Remarketing Agent shall, given the duration of the Long-Term Interest Rate
Period, determine and inform the Trustee and the Company, on a date which is no
later than the establishment of the Long-Term Interest Rate, the periods during
which the Bonds shall not be subject to redemption or purchase by the Company in
lieu of redemption (the "Call Protection Period"), the premium or premiums
payable upon redemption or purchase by the Company in lieu of redemption (the
"Call Premiums"), if any, applicable to the redemption or purchase by the
Company in lieu of redemption of Bonds after the Call Protection Period, and the
period or periods during which the Call Premiums shall be effective (the "Call
Premium Periods") necessary to establish the Long-Term Interest Rate. Such Call
Protection Period, Call Premiums and Call Premium Periods shall be established
in accordance with optional call redemption provisions which, in the judgment of
the Remarketing Agent, are generally accepted as the standard features for
obligations such as the Bonds, given the length of the Long-Term Interest Rate
Period.
Extraordinary Optional Redemption. The Bonds are subject to redemption
in whole at any time upon receipt by the Trustee and the Issuer of a written
notice from the Company stating that the Company has determined that:
(i) Any federal, state or local body exercising governmental
or judicial authority has taken any action which results in the imposition of
unreasonable burdens or excessive liabilities with respect to the Project or the
Plant, rendering impracticable or uneconomical the operation of either,
including, without limitation, the condemnation or taking by eminent domain of
all or substantially all of the Project or the Plant; or
(ii) Changes in the economic availability of raw materials,
operating supplies or facilities or technological or other changes have made the
continued operation of the Plant as an efficient generating facility
uneconomical; or
(iii) The Project or the Plant has been damaged or destroyed
to such an extent that it is not practicable or desirable to rebuild, repair or
restore the Project or such Plant.
If the Issuer shall have received such notice by the Company, the
Issuer, upon request of the Company, shall give written notice to the Trustee
directing the Trustee to take all action necessary to redeem the outstanding
Bonds in whole and on a date specified in such notice, which date shall be not
less than forty-five (45) nor more than ninety (90) days from the date the
notice is received by the Trustee.
Optional Redemption During Daily or Weekly Rate Period. When interest
on the Bonds is payable at a Daily or Weekly Rate, the Bonds may be redeemed in
whole or in part at the option of the Company, on any Business Day.
Mandatory Redemption at Beginning of a New Long-Term Interest Rate
Period. When the Bonds bear interest at a Long-Term Interest Rate and a new
Long-Term Interest Rate is to be determined, the Bonds will be redeemed or
purchased by the Company in lieu of redemption on the effective date of the new
Long-Term Interest Rate. In the case of a change prior to the day originally
established as the day after the last day of a Long-Term Interest Rate Period,
the Bonds will be redeemed or purchased at the percentage of their principal
amount which would be payable upon the applicable redemption or purchase in lieu
thereof described under "Optional Redemption at a Premium During Long-Term
Interest Rate Period" above.
Mandatory Redemption on Each Interest Payment Date During Commercial
Paper Mode. When Bonds bear interest at a Commercial Paper Rate, each Bond will
be redeemed or purchased by the Company in lieu of redemption on the Interest
Payment Date for such Bond. If Bonds are scheduled to be redeemed under the
following paragraph, the Bonds will be called under, and redemption will be
governed by, that paragraph and not this paragraph.
Mandatory Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds. On the effective date of the change in the method of
determining the interest rate on the Bonds (the four methods being Daily,
Weekly, Commercial Paper or Long-Term Interest Rates) the Bonds will be redeemed
or purchased by the Company in lieu of redemption on the effective date of such
change. Any such redemption or purchase shall be at a price equal to 100% of the
principal amount of the Bonds, except that in the case of a change prior to the
day originally established as the day after the last day of a Long-Term Interest
Rate Period, the Bonds will be redeemed or purchased at the percentage of their
principal amount which would be payable upon the applicable redemption or
purchase in lieu thereof described under "Optional Redemption at a Premium
During Long-Term Interest Rate Period" above.
Notice of Redemption. At least 30 days before each redemption (except
"Mandatory Redemption on Each Interest Payment Date During Commercial Paper
Mode" described above, for which no notice will be given), the Trustee will mail
a notice of redemption by first-class mail to each Bondholder at the holder's
registered address. Failure to give any required notice of redemption as to any
particular Bonds, or any defect therein, will not affect the validity of the
call for redemption of any Bonds in respect of which no failure or defect
occurs. Any notice mailed as provided in this paragraph shall be effective when
sent and will be conclusively presumed to have been given whether or not
actually received by the addressee.
Effect of Notice of Redemption. When notice of redemption is required
and given, and when Bonds are to be redeemed without notice, Bonds called for
redemption become due and payable on the redemption date at the applicable
redemption price, subject to the Company's right to purchase Bonds as provided
above; in such case when funds are deposited with the Trustee sufficient for
redemption or for purchase, interest on the Bonds to be redeemed or purchased
ceases to accrue as of the date of redemption or purchase.
9. Denominations; Transfer; Exchange. The Bonds may be issued in
registered form without coupons in denominations as follows: (1) when interest
is payable at a Daily, Weekly or Commercial Paper Rate, $100,000 or any integral
multiple thereof; and (2) when interest is payable at a Long-Term Interest Rate,
$5,000 and integral multiples of $5,000 thereafter; provided, however, that if,
on the effective date of a change in the method of determining the interest rate
on the Bonds to a Long-Term Interest Rate for a Long-Term Interest Rate Period
or upon commencement of a new Long-Term Interest Rate Period, the Bonds do not
then have an investment-grade rating from a nationally recognized statistical
rating agency, then during such Long-Term Interest Rate Period, the Bonds may be
issued only in registered form without coupons in denominations of $100,000 or
any integral multiple thereof. A holder may register the transfer of or exchange
Bonds in accordance with the Indenture. The Trustee may require a holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture. Except in
connection with the purchase of Bonds tendered for purchase or purchased in lieu
of redemption, the Trustee will not be required to register the transfer of or
exchange any Bond which has been called for redemption or during the period
beginning 15 days before the mailing of notice calling the Bonds or any portion
of the Bonds for redemption and ending on the redemption date.
10. Persons Deemed Owners. The registered holder of this Bond shall be
treated as the owner of it for all purposes.
11. Funds in Trust; Unclaimed Funds. All moneys which the Trustee shall
have withdrawn from the account of the Company or shall have received from any
other source and set aside, or deposited with the paying agents, for the purpose
of paying any of the Bonds hereby secured, either at the maturity thereof or
upon call for redemption, shall be held in trust for the respective holders of
such Bonds. But any moneys which shall be so set aside or deposited by the
Trustee and which shall remain unclaimed by the holders of such Bonds for a
period of six (6) years after the date on which such Bonds shall have become due
and payable shall upon request in writing be paid to the Company or to such
officer, board or body as may then be entitled by law to receive the same, and
thereafter the holders of such Bonds shall look only to the Company or to such
officer, board or body, as the case may be, for payment and then only to the
extent of the amount so received without any interest thereon, and the Trustee,
the Issuer and the paying agents shall have no responsibility with respect to
such moneys.
12. Discharge Before Redemption or Maturity. If the Company at any time
deposits with the Trustee money or Government Obligations as described in the
Indenture sufficient to pay at redemption or maturity principal of and interest
on the outstanding Bonds, and if the Company also pays all other sums then
payable by the Company under the Indenture, the lien of the Indenture will be
discharged. After discharge, Bondholders must look only to the deposited money
and securities for payment. Government Obligations are securities backed by the
faith and credit of the United States or securities evidencing ownership
interest in such full-faith and credit securities.
13. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture, the Agreement or the Bonds may be amended or supplemented, and any
past default or compliance with any provision may be waived, with the consent of
the holders of a majority in principal amount of the Bonds then outstanding. Any
such consent shall be irrevocable and shall bind any subsequent owner of this
Bond or any Bond delivered in substitution for this Bond. Without the consent of
any Bondholder, the Issuer may amend or supplement the Indenture, the Agreement
or the Bonds as described in the Indenture, among other things, to cure any
ambiguity, omission, defect or inconsistency, to provide for uncertificated
Bonds in addition to or in place of certificated Bonds, to provide for a
Book-Entry System for the Bonds or to make any change that does not materially
adversely affect the rights of any Bondholder.
14. Defaults and Remedies. The Indenture provides that the occurrences
of certain events constitute Events of Default. If an Event of Default occurs
and is continuing, the Bonds may become or may be declared immediately due and
payable, as provided in the Indenture. An Event of Default and its consequences
may be waived as provided in the Indenture. Bondholders may not enforce the
Indenture or the Bonds except as provided in the Indenture. Except as
specifically provided in the Indenture, the Trustee may refuse to enforce the
Indenture or the Bonds unless it receives indemnity satisfactory to it. Subject
to certain limitations, holders of a majority in principal amount of the Bonds
then outstanding may direct the Trustee in its exercise of any trust or power.
15. No Recourse Against Others. A member, director, officer or
employee, as such, of the Issuer shall not have any liability for any
obligations of the Issuer or the Company under the Bonds or the Indenture or for
any claim based on such obligations or their creation. Each Bondholder by
accepting a Bond waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Bond.
16. Authentication. This Bond shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under the Indenture until
the certificate of authentication hereon shall have been duly executed by the
Trustee.
17. Abbreviations. Customary abbreviations may be used in the name of a
Bondholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A copy of the Indenture may be inspected at the corporate trust office
of the Trustee located at 225 Water Street, 3rd Floor, Jacksonville, Florida
32202.
<PAGE>
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions
and things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture and the issuance of this Bond do exist,
have happened and have been performed in due time, form and manner as required
by law.
IN WITNESS WHEREOF Jackson County, Florida has caused this Bond to be
executed in its name by the Chairman or Vice Chairman of its Board of County
Commissioners by his manual or facsimile signature and attested by the manual or
facsimile signature of its Clerk or Deputy Clerk and its corporate seal to be
hereunto affixed or printed hereon.
JACKSON COUNTY, FLORIDA
By:
Chairman of the Jackson County
Board of County Commissioners
Attest:
Clerk of Jackson County
Board of County Commissioners
<PAGE>
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein and
issued under the provisions of the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
Date: _________________ By:
Authorized Signature
<PAGE>
The following abbreviations, when used in the inscription on the face of the
within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM- as tenants UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used though not in list above.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
______________________ attorney to transfer the said Bond on the books kept for
registration thereof with full power of substitution in the premises.
Dated:_____________________________
Signature guaranteed:
- ------------------------------
Medallion Number:_____________
*Signature(s) must be guaranteed by an NOTICE: The signatureto this
eligible guarantor institution which assignment must
is a member of a recognized signature correspond with the name of the
guarantee program, i.e. Securities registered owner as it appears upon
Transfer Agents Medallion Program the face of the within Bond in every
(STAMP), or New York Stock Exchange particular, without alteration or
Medallion Signature Program (MSP). enlargement or any change whatever.
Exhibit E
STATE OF MISSISSIPPI
COUNTY OF JACKSON
$37,000,000
SUBORDINATE LAND DEED OF TRUST
THIS INDENTURE, made and entered into this day by and among Gulf Power
Company whose address is 500 Bayfront Parkway, Pensacola, FL 32501, as Grantor
(herein designated as "Debtor"), Ben H. Stone, as Trustee, and Escambia County,
Florida, as beneficiary (herein designated as "Secured Party"),
WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the full principal sum
of Thirty-Seven Million Dollars ($37,000,000) evidenced by Debtor's Promissory
Note issued of even date herewith in favor of Secured Party (the "Note")
pursuant to the Loan Agreement between Debtor and Secured Party dated as of July
1, 1997, said indebtedness bearing interest as specified in the Note being due
and payable as set forth in the above described Loan Agreement and Note. Unless
sooner paid, the final maturity date of the indebtedness evidenced by the said
Note is July 1, 2022.
NOW, THEREFORE, in consideration of the Indebtedness and obligations
herein recited, Debtor hereby conveys and warrants unto Trustee, Debtor's
undivided one-half (1/2) interest in the land together with all improvements
thereon described below situated in the County of Jackson, State of Mississippi:
A steam plant site at or near Cumbest Bluff in Jackson County,
Mississippi, or known as the Jackson County Steam Plant site ("Plant
Victor J. Daniel") on land recorded in the office of the Chancery Clerk
of Jackson County and described as follows:
Section 15 Township 6 South Range 6 West
Lots 1 and 2 as recorded in Book 416 Page 299 and Book 428
Page 259.
Section 14 Township 6 South Range 6 West
Beginning at the Northeast corner of Section 14, Township 6
South, Range 6 West, and run thence South along the East line
of said Section 14 a distance of 2030 feet to a point, run
thence West a distance of 380 feet to a point, thence South 3
degrees 30 minutes East a distance of 125 feet to a point, run
thence West a distance of 730 feet to Clark Bayou, run thence
Southwesterly along the meanderings of Clark Bayou 6,560 feet,
more or less, to the Southwest corner of Section 14, thence
North along the West section line of Section 14 to the
Northwest corner of said section, thence run East along the
North line of Section 14 a distance of 5251 feet, more or
less, to the Northeast corner of said Section 14 and the Point
of Beginning, less and except that part to Miss. State Highway
Dept. recorded in Book 172 Pages 585-6, all as recorded in
Book 439 Page 467-70.
Section 11 Township 6 South Range 6 West
All that part of the SE 1/4 of SE 1/4 East of Mississippi
State Highway 63; all of Section 11 West of Highway 63 all
being recorded in Book 439 Page 467-70, Book 434 Page 601,
Book 434 Page 664, Book 434 Page 600, Book 442 Page 155, and
Book 441 Page 327.
Section 10 Township 6 South Range 6 West
All of the entire Section as recorded in Book 428 Page 259,
Book 448 Page 288, Book 449 Page 418, Book 449 Page 507.
Section 9 Township 6 South Range 6 West
All that part East of Pascagoula River as recorded in Book 428
Page 259.
Section 4 Township 6 South Range 6 West
All that part East of Pascagoula River and South of Vaughn
Bayou, as recorded in Book 428 Page 259.
Section 37 Township 6 South Range 6 West
All that part of Allen Goodwin Private Claim 37 that would
have been the S 1/2 of Regular Section 3, if regularly
surveyed, less and except that part lying Northwest of Vaughn
Bayou as recorded in Book 428 Page 259.
Section 2 Township 6 South Range 6 West
All that part of the SW 1/4 of Section 2 lying West of Highway
63 as recorded in Book 417 Page 468, Book 419 Page 57, Book
444 Page 36, Book 414 Page 163, Book 419 Page 557, Book 423
Page 160, Book 448 Page 282, Book 455 Page 401 and Book 455
Page 400.
A tract of land in the A. Goodwin Claim, Section Thirty-five (35) and
the Kirkwood Claim, Section Forty-two (42), both in Township Five (5)
South, Range Six (6) West, Jackson County, described as follows:
Beginning at a point 75 feet West of the Southeast corner of
the A. Goodwin Claim Section 35, Township 5 South, Range 6
West, on the West margin of the County Road known as "River
Road" (Now Mississippi State Highway No. 63) and thence run
West along the South boundary line of the aforesaid A. Goodwin
Claim No. 35, 1575 feet; thence North 1609.50 feet; thence
East 295 feet; thence South 69 degrees and 19 minutes East 885
feet to the West margin of the County Road known as "River
Road" (Now Mississippi State Highway No. 63); thence Southerly
along the West margin of said Road South 6 degrees and 24
minutes West 100 feet; thence South 1 degree and 34 minutes
East 100 feet; thence South 7 degrees and 44 minutes East 100
feet; thence South 9 degrees and 33 minutes East 100 feet;
thence South 12 degrees and 46 minutes East 200 feet; thence
South 16 degrees and 30 minutes East 100 feet; thence South 25
degrees and 12 minutes East 100 feet; thence South 30 degrees
and 45 minutes East 200 feet; thence South 34 degrees and 22
minutes East 300 feet; thence South 23 degrees and 20 minutes
East 108.7 feet to the point of beginning.
LESS AND EXCEPT those certain parcels sold to David Thomas
Pinter and sold to Erbie Gene Bailey and wife all as recorded
in Deed Book 250 Page 336
394 168 and 171
399 420
407 170
LESS AND EXCEPT any part of the above described land which
lies East of the New Mississippi Highway No. 63 as now laid
out and used. As recorded in Book 423 Page 157,
together with all improvements and appurtenances now or hereafter erected on,
and all fixtures of any and every description now or hereafter attached to, said
land (all being herein referred to as the "Property"). Debtor reserves the right
to execute with Trustee (without the consent of Secured Party), an amendment to
this instrument substituting for the property collateral having a value in the
judgment of Debtor not less than the then unpaid principal amount of the Note.
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt performance by
Debtor to Secured Party as described hereinabove under the provisions of this
Deed of Trust. If Debtor shall discharge its obligation to Secured Party
according to the tenor of the Loan Agreement and Note described hereinabove and
shall perform all covenants made by Debtor to Secured Party herein, then this
conveyance shall be void and of no effect. If Debtor shall be in default in the
performance of its obligations under its Loan Agreement and Note described
hereinabove, then, in that event, Trustee shall, at the request of Secured
Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the
Indebtedness at public outcry to the highest bidder for cash. Sale of the
property shall be advertised for three consecutive weeks preceding the sale in a
newspaper published in the county where the Property is situated, or if none is
so published, then in some newspaper having a general circulation therein, and
by posting a notice for the same time at the courthouse of the same county. The
notice and advertisement shall disclose the names of the original Debtor in this
Deed of Trust.
Secured Party shall have the same right to purchase the property at the
foreclosure sale as would a purchaser who is not a party to this Deed of Trust.
Debtor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972,
as amended, if any, as far as this section restricts the right of Trustee to
offer at sale more than 160 acres at a time, and Trustee may offer the property
herein as a whole, regardless of how it is described.
From the proceeds of the sale Trustee shall first pay all costs of the
sale including reasonable compensation to Trustee; then the Indebtedness due
Secured Party by Debtor, including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance remaining to Debtor.
IT IS AGREED that this conveyance is made subject to the covenants,
stipulations and conditions set forth below which shall be binding upon all
parties hereto.
1. Debtor shall pay all taxes and assessments, general or special,
levied against the Property or upon the interest of Trustee or Secured Party
therein, during the term of this Deed of Trust before such taxes or assessments
become delinquent, except to the extent the same may be contested.
2. Debtor shall keep the Property in good repair and shall not permit
or commit waste, impairment or deterioration thereof. Debtor shall use the
Property for lawful purposes only.
3. Debtor shall be in default under the provisions of this Deed of
Trust if Debtor shall default in the performance according to the tenor of the
Loan Agreement and Note described hereinabove.
4. Secured Party may by giving 30 days written notice to the original
or any successor Trustee, and to Debtor, appoint another person or succession of
persons to act as Trustee, and such appointee in the execution of this trust
shall have all the powers vested in and obligations imposed upon Trustee.
5. This Deed of Trust and the rights of the Secured Party hereunder are
subordinate in their entirety to the lien of that certain Mortgage Indenture
dated as of September 1, 1941 and recorded in the Records of the Mortgages and
Deeds of Trust on Land in Jackson County, Mississippi, executed by the Debtor
named herein, with The Chase Manhattan Bank, as Trustee for the benefit of the
holders of certain obligations of Debtor (the "Trust Indenture"). This Deed of
Trust, and the rights of the Secured Party hereunder, are also subordinate to
the rights of the Trustee named in the Trust Indenture and the parties secured
thereby with respect to any future indebtedness issued by the Debtor and secured
by the Trust Indenture as it is now constituted and as it may be subsequently
supplemented and/or amended. In the event the Debtor shall elect to sell all or
part of the property secured hereby and Debtor's obligations secured by the
Trust Indenture shall not have been fully satisfied at the time of such sale,
the entire proceeds from such a sale shall be paid over by Debtor to the Trustee
under the Trust Indenture and the Secured Party named herein shall have no right
to receive any part thereof unless and until all obligations then secured by the
Trust Indenture shall be fully paid. A release by the Trustee named in the Trust
Indenture, or any successor thereto, of all or of any of such property so sold
shall constitute a release of the lien of this Deed of Trust by the Secured
Party named herein; Secured Party, by accepting this Deed of Trust, hereby
appoints the Trustee for the Trust Indenture as its agent and attorney-in-fact
for the purpose of releasing from the lien of this Deed of Trust all or any
parts of the property described herein in the event of a sale of all or any part
thereof by the Debtor; and, in such event, Secured Party disclaims any right to
receive any of the proceeds from any such sale unless Debtor shall at the time
be in default under the terms of its Note secured hereby; and then only to the
extent that all of the obligations of the Debtor then secured by the Trust
Indenture are first satisfied.
6. Notices required herein from Secured Party to Debtor shall be sent
to the address of Debtor shown in this Deed of Trust.
<PAGE>
IN WITNESS WHEREOF, Debtor has executed this Deed of Trust on the 1st
day of July, 1997.
Attest: GULF POWER COMPANY, Debtor
By: By:
Its:
(SEAL)
<PAGE>
STATE OF __________
COUNTY OF _____________
PERSONALLY appeared before me, the undersigned authority in and for the
said county and state, on this 1st day of July, 1997, within my jurisdiction,
the within named _____________ ___________________ and
_______________________________________, who acknowledged that they are the Vice
President and Assistant Secretary respectively 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.
NOTARY PUBLIC
My Commission Expires:
(SEAL)
Indexing Instructions: All quarter quarter
sections in Sections 15, 14, 11, 10,
9, 4, 37 and 2, all in Township 6
South, Range 6 West; and all quarter
quarter sections in the A. Goodwin
Claim, Section 35, and the Kirkwood
Claim, Section 42, both in Township
5 South, Range 6 West, Jackson
County, Mississippi.
Instrument Prepared by: Brenda V. Znachko, Eaton and Cottrell, P.A., 1310
Twenty-Fifth Avenue, P.O. Box 130,
Gulfport, MS 39502; (601) 864-9900
<PAGE>
STATE OF ___________
COUNTY OF ____________
TRANSFER AND ASSIGNMENT
For value received the undersigned hereby transfers, assigns, and
conveys without recourse unto First Union National Bank, as "Trustee" pursuant
to that certain Trust Indenture dated as of July 1, 1997, between Escambia
County, Florida, and First Union National Bank, all its right, title, interest,
powers and options in, to and under the within Subordinate Land Deed of Trust
from Gulf Power Company to the undersigned as well as to the land described
therein and the indebtedness secured thereby.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal
as of July 1, 1997.
ESCAMBIA COUNTY, FLORIDA
Signed, sealed and By:
delivered in the Title:
presence of:
Attest:
Witness Title:
Notary Public
Commission Data:
Exhibit F
STATE OF MISSISSIPPI
COUNTY OF JACKSON
$3,930,000
SUBORDINATE LAND DEED OF TRUST
THIS INDENTURE, made and entered into this day by and among Gulf Power
Company whose address is 500 Bayfront Parkway, Pensacola, FL 32501, as Grantor
(herein designated as "Debtor"), Ben H. Stone, as Trustee, and Jackson County,
Florida, as beneficiary (herein designated as "Secured Party"),
WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the full principal sum
of Three Million Nine Hundred Thirty Thousand Dollars ($3,930,000) evidenced by
Debtor's Promissory Note issued of even date herewith in favor of Secured Party
(the "Note") pursuant to the Loan Agreement between Debtor and Secured Party
dated as of July 1, 1997, said indebtedness bearing interest as specified in the
Note being due and payable as set forth in the above described Loan Agreement
and Note. Unless sooner paid, the final maturity date of the indebtedness
evidenced by the said Note is July 1, 2022.
NOW, THEREFORE, in consideration of the Indebtedness and obligations
herein recited, Debtor hereby conveys and warrants unto Trustee, Debtor's
undivided one-half (1/2) interest in the land together with all improvements
thereon described below situated in the County of Jackson, State of Mississippi:
A steam plant site at or near Cumbest Bluff in Jackson County,
Mississippi, or known as the Jackson County Steam Plant site ("Plant
Victor J. Daniel") on land recorded in the office of the Chancery Clerk
of Jackson County and described as follows:
Section 15 Township 6 South Range 6 West
Lots 1 and 2 as recorded in Book 416 Page 299 and Book 428
Page 259.
Section 14 Township 6 South Range 6 West
Beginning at the Northeast corner of Section 14, Township 6
South, Range 6 West, and run thence South along the East line
of said Section 14 a distance of 2030 feet to a point, run
thence West a distance of 380 feet to a point, thence South 3
degrees 30 minutes East a distance of 125 feet to a point, run
thence West a distance of 730 feet to Clark Bayou, run thence
Southwesterly along the meanderings of Clark Bayou 6,560 feet,
more or less, to the Southwest corner of Section 14, thence
North along the West section line of Section 14 to the
Northwest corner of said section, thence run East along the
North line of Section 14 a distance of 5251 feet, more or
less, to the Northeast corner of said Section 14 and the Point
of Beginning, less and except that part to Miss. State Highway
Dept. recorded in Book 172 Pages 585-6, all as recorded in
Book 439 Page 467-70.
Section 11 Township 6 South Range 6 West
All that part of the SE 1/4 of SE 1/4 East of Mississippi
State Highway 63; all of Section 11 West of Highway 63 all
being recorded in Book 439 Page 467-70, Book 434 Page 601,
Book 434 Page 664, Book 434 Page 600, Book 442 Page 155, and
Book 441 Page 327.
Section 10 Township 6 South Range 6 West
All of the entire Section as recorded in Book 428 Page 259,
Book 448 Page 288, Book 449 Page 418, Book 449 Page 507.
Section 9 Township 6 South Range 6 West
All that part East of Pascagoula River as recorded in Book 428
Page 259.
Section 4 Township 6 South Range 6 West
All that part East of Pascagoula River and South of Vaughn
Bayou, as recorded in Book 428 Page 259.
Section 37 Township 6 South Range 6 West
All that part of Allen Goodwin Private Claim 37 that would
have been the S 1/2 of Regular Section 3, if regularly
surveyed, less and except that part lying Northwest of Vaughn
Bayou as recorded in Book 428 Page 259.
Section 2 Township 6 South Range 6 West
All that part of the SW 1/4 of Section 2 lying West of Highway
63 as recorded in Book 417 Page 468, Book 419 Page 57, Book
444 Page 36, Book 414 Page 163, Book 419 Page 557, Book 423
Page 160, Book 448 Page 282, Book 455 Page 401 and Book 455
Page 400.
A tract of land in the A. Goodwin Claim, Section Thirty-five (35) and
the Kirkwood Claim, Section Forty-two (42), both in Township Five (5)
South, Range Six (6) West, Jackson County, described as follows:
Beginning at a point 75 feet West of the Southeast corner of
the A. Goodwin Claim Section 35, Township 5 South, Range 6
West, on the West margin of the County Road known as "River
Road" (Now Mississippi State Highway No. 63) and thence run
West along the South boundary line of the aforesaid A. Goodwin
Claim No. 35, 1575 feet; thence North 1609.50 feet; thence
East 295 feet; thence South 69 degrees and 19 minutes East 885
feet to the West margin of the County Road known as "River
Road" (Now Mississippi State Highway No. 63); thence Southerly
along the West margin of said Road South 6 degrees and 24
minutes West 100 feet; thence South 1 degree and 34 minutes
East 100 feet; thence South 7 degrees and 44 minutes East 100
feet; thence South 9 degrees and 33 minutes East 100 feet;
thence South 12 degrees and 46 minutes East 200 feet; thence
South 16 degrees and 30 minutes East 100 feet; thence South 25
degrees and 12 minutes East 100 feet; thence South 30 degrees
and 45 minutes East 200 feet; thence South 34 degrees and 22
minutes East 300 feet; thence South 23 degrees and 20 minutes
East 108.7 feet to the point of beginning.
LESS AND EXCEPT those certain parcels sold to David Thomas
Pinter and sold to Erbie Gene Bailey and wife all as recorded
in Deed Book 250 Page 336
394 168 and 171
399 420
407 170
LESS AND EXCEPT any part of the above described land which lies
East of the New Mississippi Highway No. 63 as now laid out and
used. As recorded in Book 423 Page 157,
together with all improvements and appurtenances now or hereafter erected on,
and all fixtures of any and every description now or hereafter attached to, said
land (all being herein referred to as the "Property"). Debtor reserves the right
to execute with Trustee (without the consent of Secured Party), an amendment to
this instrument substituting for the property collateral having a value in the
judgment of Debtor not less than the then unpaid principal amount of the Note.
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt performance by
Debtor to Secured Party as described hereinabove under the provisions of this
Deed of Trust. If Debtor shall discharge its obligation to Secured Party
according to the tenor of the Loan Agreement and Note described hereinabove and
shall perform all covenants made by Debtor to Secured Party herein, then this
conveyance shall be void and of no effect. If Debtor shall be in default in the
performance of its obligations under its Loan Agreement and Note described
hereinabove, then, in that event, Trustee shall, at the request of Secured
Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the
Indebtedness at public outcry to the highest bidder for cash. Sale of the
property shall be advertised for three consecutive weeks preceding the sale in a
newspaper published in the county where the Property is situated, or if none is
so published, then in some newspaper having a general circulation therein, and
by posting a notice for the same time at the courthouse of the same county. The
notice and advertisement shall disclose the names of the original Debtor in this
Deed of Trust.
Secured Party shall have the same right to purchase the property at the
foreclosure sale as would a purchaser who is not a party to this Deed of Trust.
Debtor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972,
as amended, if any, as far as this section restricts the right of Trustee to
offer at sale more than 160 acres at a time, and Trustee may offer the property
herein as a whole, regardless of how it is described.
From the proceeds of the sale Trustee shall first pay all costs of the
sale including reasonable compensation to Trustee; then the Indebtedness due
Secured Party by Debtor, including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance remaining to Debtor.
IT IS AGREED that this conveyance is made subject to the covenants,
stipulations and conditions set forth below which shall be binding upon all
parties hereto.
1. Debtor shall pay all taxes and assessments, general or special,
levied against the Property or upon the interest of Trustee or Secured Party
therein, during the term of this Deed of Trust before such taxes or assessments
become delinquent, except to the extent the same may be contested.
2. Debtor shall keep the Property in good repair and shall not
permit or commit waste, impairment or deterioration thereof. Debtor shall use
the Property for lawful purposes only.
3. Debtor shall be in default under the provisions of this Deed of
Trust if Debtor shall default in the performance according to the tenor of the
Loan Agreement and Note described hereinabove.
4. Secured Party may by giving 30 days written notice to the original
or any successor Trustee, and to Debtor, appoint another person or succession of
persons to act as Trustee, and such appointee in the execution of this trust
shall have all the powers vested in and obligations imposed upon Trustee.
5. This Deed of Trust and the rights of the Secured Party hereunder are
subordinate in their entirety to the lien of that certain Mortgage Indenture
dated as of September 1, 1941 and recorded in the Records of the Mortgages and
Deeds of Trust on Land in Jackson County, Mississippi, executed by the Debtor
named herein, with The Chase Manhattan Bank, as Trustee for the benefit of the
holders of certain obligations of Debtor (the "Trust Indenture"). This Deed of
Trust, and the rights of the Secured Party hereunder, are also subordinate to
the rights of the Trustee named in the Trust Indenture and the parties secured
thereby with respect to any future indebtedness issued by the Debtor and secured
by the Trust Indenture as it is now constituted and as it may be subsequently
supplemented and/or amended. In the event the Debtor shall elect to sell all or
part of the property secured hereby and Debtor's obligations secured by the
Trust Indenture shall not have been fully satisfied at the time of such sale,
the entire proceeds from such a sale shall be paid over by Debtor to the Trustee
under the Trust Indenture and the Secured Party named herein shall have no right
to receive any part thereof unless and until all obligations then secured by the
Trust Indenture shall be fully paid. A release by the Trustee named in the Trust
Indenture, or any successor thereto, of all or of any of such property so sold
shall constitute a release of the lien of this Deed of Trust by the Secured
Party named herein; Secured Party, by accepting this Deed of Trust, hereby
appoints the Trustee for the Trust Indenture as its agent and attorney-in-fact
for the purpose of releasing from the lien of this Deed of Trust all or any
parts of the property described herein in the event of a sale of all or any part
thereof by the Debtor; and, in such event, Secured Party disclaims any right to
receive any of the proceeds from any such sale unless Debtor shall at the time
be in default under the terms of its Note secured hereby; and then only to the
extent that all of the obligations of the Debtor then secured by the Trust
Indenture are first satisfied.
6. Notices required herein from Secured Party to Debtor shall be sent
to the address of Debtor shown in this Deed of Trust.
<PAGE>
IN WITNESS WHEREOF, Debtor has executed this Deed of Trust on the 1st
day of July, 1997.
Attest: GULF POWER COMPANY, Debtor
By: By:
Its:
(SEAL)
<PAGE>
STATE OF __________
COUNTY OF _____________
PERSONALLY appeared before me, the undersigned authority in and for the
said county and state, on this 1st day of July, 1997, within my jurisdiction,
the within named _____________ ___________________ and
_______________________________________, who acknowledged that they are the Vice
President and Assistant Secretary respectively 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.
NOTARY PUBLIC
My Commission Expires:
(SEAL)
Indexing Instructions: All quarter quarter
sections in Sections 15, 14, 11, 10,
9, 4, 37 and 2, all in Township 6
South, Range 6 West; and all quarter
quarter sections in the A. Goodwin
Claim, Section 35, and the Kirkwood
Claim, Section 42, both in Township
5 South, Range 6 West, Jackson
County, Mississippi.
Instrument Prepared by: Brenda V. Znachko, Eaton and Cottrell, P.A.,
1310 Twenty-Fifth Avenue, P.O. Box 130,
Gulfport, MS 39502; (601) 864-9900
<PAGE>
STATE OF ___________
COUNTY OF ____________
TRANSFER AND ASSIGNMENT
For value received the undersigned hereby transfers, assigns, and
conveys without recourse unto First Union National Bank, as "Trustee" pursuant
to that certain Trust Indenture dated as of July 1, 1997, between Jackson
County, Florida, and First Union National Bank, all its right, title, interest,
powers and options in, to and under the within Subordinate Land Deed of Trust
from Gulf Power Company to the undersigned as well as to the land described
therein and the indebtedness secured thereby.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal
as of July 1, 1997.
JACKSON COUNTY, FLORIDA
Signed, sealed and By:
delivered in the Title:
presence of:
Attest:
Witness Title:
Notary Public
Commission Data:
Exhibit G
BEGGS & LANE
SEVENTH FLOOR BLOUNT BUILDING
3 WEST GARDEN STREET
PENSACOLA, FLORIDA 32501
904-432-2451
July 14, 1997
Re: Statement on Form U-1 of
Gulf Power Company
(herein called the "Company")
File No. 70-8949
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 issuance of $40,930,000
aggregate principal amount of Revenue Bonds (as defined therein) for the benefit
of the Company.
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 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
July 14, 1997
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
