Exhibit B
ESCAMBIA COUNTY, FLORIDA
and
GULF POWER COMPANY
LOAN AGREEMENT
Dated as of April 1, 2003
Relating to
$32,550,000
Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project)
Series 2003
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
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Project..............................................2
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SECTION 2.2. Issuance of the Bonds...........................2
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ARTICLE III: LOAN BY ISSUER; PROVISIONS FOR PAYMENT....................3
SECTION 3.1. Loan by Issuer..................................3
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SECTION 3.2. Delivery of Note by Company; Other
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Amounts Payable......................................3
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SECTION 3.3. Obligation of the Company
Unconditional........................................3
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SECTION 3.4. Assignment and Pledge of Payments
and Rights Under the Note and the
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Agreement............................................4
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ARTICLE IV: SPECIAL COVENANTS.........................................4
SECTION 4.1. Use of Project..................................4
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SECTION 4.2. Indemnity Against Claims........................4
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SECTION 4.3. The Company to Maintain Its
Corporate Existence; Conditions Under
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Which Exceptions Permitted...........................5
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SECTION 4.4. Annual Statement................................5
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SECTION 4.5. Further Assurances and Corrective
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Instruments..........................................6
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SECTION 4.6. Maintenance of Project by Company...............6
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SECTION 4.7. Redemption or Purchase of Bonds.................6
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SECTION 4.8. Non-Arbitrage Covenant..........................6
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SECTION 4.9. No Issuer Liability.............................6
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SECTION 4.10 Post Issuance Audits............................7
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ARTICLE V: EVENTS OF DEFAULT AND REMEDIES..............................8
SECTION 5.1. Events of Default...............................8
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SECTION 5.2. Remedies on Default.............................9
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SECTION 5.3. Agreement to Pay Attorneys' Fees
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and Expenses.........................................9
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SECTION 5.4. No Additional Waiver Implied by One
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Waiver..............................................10
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ARTICLE VI MISCELLANEOUS.............................................10
SECTION 6.1. Term of This Agreement.........................10
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SECTION 6.2. Notices........................................10
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SECTION 6.3. Binding Effect.................................10
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SECTION 6.4. Severability...................................11
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SECTION 6.5. Amendments.....................................11
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SECTION 6.6. Execution in Counterparts......................11
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SECTION 6.7. Applicable Law.................................11
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SECTION 6.8. Captions.......................................11
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SECTION 6.9. Other Financing................................11
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..........LOAN AGREEMENT dated as of April 1, 2003 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", "Prior
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.
"corporation" includes corporations, partnerships, limited partnerships,
limited liability partnerships, limited liability companies, associations,
companies, statutory trusts and business trusts.
"Event of Default" means any of the occurrences enumerated in Section 5.1
of this Agreement.
"Indenture" means the Trust Indenture dated as of April 1, 2003, relating
to Pollution Control Revenue Refunding Bonds (Gulf Power Company Project),
Series 2003, between the Issuer and The Bank of New York Trust Company of
Florida, N.A., 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.
.........."1976 Original Agreement" means the Installment Sale Agreement, dated
as of May 1, 1976 between the Issuer and the Company, delivered in connection
with the issuance of the Issuer's Pollution Control Revenue Bonds (Gulf Power
Company Xxxxx Steam Plant Project No. 2), Series A, in the outstanding principal
amount of $12,550,000.
.........."1983 Original Agreement" means the Loan Agreement dated as of August
1, 1983 between the Issuer and the Company, delivered in connection with the
Issuer's Pollution Control Revenue Bonds (Gulf Power Company Project), Series
1983, in the outstanding principal amount of $20,000,000.
.........."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, collectively, the 1976 Original Agreement and
the 1983 Original Agreement.
"Plans" has the same meaning given and assigned to the word "Plans" in
Article I of the Original Agreement.
"Project" has the same meaning given and assigned to the word "Project" 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 and
Section 3.1 hereof. 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 refunding 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
Prior Bonds Trustees the amount in excess of the proceeds of the Bonds needed to
pay the redemption price of the Prior 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
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 and (ii) 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.
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..........(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 it 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; and
(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, returned 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 or the Trustee 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 or the Trustee.
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, 000
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000; if to the Company and via United States
mail at Xxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000-0000, Attention: Treasurer,
with copies to Southern Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance Department; if to the
Company and via hand delivery at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx 00000,
Attention: Treasurer, with copies to Southern Company Services, Inc., 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance
Department; and if to the Trustee, at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, 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.
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:
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Chairman of the Escambia County
Board of County Commissioners
ATTEST:
Clerk of the Escambia County
Board of County Commissioners
GULF POWER COMPANY
[SEAL]By:
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Vice President, Secretary and Treasurer
ATTEST:
Assistant Secretary
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
$32,550,000 April 15, 2003
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-TWO
MILLION FIVE HUNDRED FIFTY THOUSAND DOLLARS ($32,550,000) 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 April 1, 2003, pursuant to which the County has loaned to
Gulf the proceeds of the sale of the County's $32,550,000 of Pollution Control
Revenue Refunding Bonds (Gulf Power Company Project), Series 2003 (the "Bonds").
This Note (together with the Agreement) has been assigned to The Bank of New
York Trust Company of Florida, N.A. (the "Trustee"), acting pursuant to a trust
indenture dated as of April 1, 2003 (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 June 1, 2023. 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.
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:
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Attest:
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ASSIGNMENT
Pay, without recourse, to the order of The Bank of New York Trust
Company of Florida, N.A., as assignee of Escambia County, Florida under the
Trust Indenture, dated as of April 1, 2003, between Escambia County, Florida and
The Bank of New York Trust Company of Florida, N.A., as Trustee, securing the
payment of Escambia County, Florida Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series 2003, in the original principal amount of
$32,550,000.
ESCAMBIA COUNTY, FLORIDA
By:
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