Exhibit A
MISSISSIPPI BUSINESS FINANCE CORPORATION
and
GULF POWER COMPANY
LOAN AGREEMENT
Dated as of September 1, 2002
Relating to
$13,000,000
Solid Waste Disposal Facilities Revenue Refunding Bonds
Series 2002
(Gulf Power Company Project)
i
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 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. Inspection of the Project..........................4
SECTION 4.4. The Company to Maintain Its Corporate
Existence; Conditions Under Which
Exceptions Permitted.........................4
SECTION 4.5. Annual Statement...................................5
SECTION 4.6. Further Assurances and Corrective
Instruments..................................5
SECTION 4.7. Maintenance of Project by Company..................5
SECTION 4.8. Redemption or Purchase of Bonds....................5
SECTION 4.9. Tax Covenants......................................6
SECTION 4.10. Compliance with Indenture.........................6
SECTION 4.11. Compliance with Prior Indenture...................6
SECTION 4.12. No Warranty of Suitability by the Issuer..........6
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES..........................6
SECTION 5.1. Events of Default..................................6
SECTION 5.2. Remedies on Default................................8
SECTION 5.3. Agreement to Pay Attorneys' Fees and
Expenses.....................................8
SECTION 5.4. No Additional Waiver Implied by One Waiver.........8
ARTICLE VI: MISCELLANEOUS...........................................8
SECTION 6.1. Term of This Agreement.............................8
SECTION 6.2. Notices............................................9
SECTION 6.3. Binding Effect.....................................9
SECTION 6.4. Severability.......................................9
SECTION 6.5. Amendments.........................................9
SECTION 6.6. Execution in Counterparts..........................9
SECTION 6.7. Applicable Law.....................................9
SECTION 6.8. Captions...........................................9
SECTION 6.9. Other Financing...................................10
SECTION 6.10. Amounts Remaining in the Bond Fund...............10
..........LOAN AGREEMENT dated as of September 1, 2002 between the MISSISSIPPI
BUSINESS FINANCE CORPORATION, a public corporation duly created and validly
existing pursuant to the Constitution and laws of the State of Mississippi (the
"Issuer"), and GULF POWER COMPANY, a corporation organized and existing under
the laws of the State of Maine (the "Company"), evidencing the agreement of the
parties hereto.
..........In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided that in the
performance of the agreements of the Issuer herein contained, any obligation it
may thereby incur for the payment of money shall not be a general debt,
liability or obligation of the Issuer, or of the State of Mississippi 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
.........."Arbitrage Rebate Agreement", "Bond Fund", "Bondholder", "Bonds",
"Business Day", "Code", "Government Obligations", "Prior Indenture", "Rebate
Requirement" 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.
.........."Event of Default" means any of the occurrences enumerated in Section
5.1 of this Agreement.
.........."Indenture" means the Trust Indenture dated as of September 1, 2002,
relating to $13,000,000 Solid Waste Disposal Facilities Revenue Refunding Bonds,
Series 2002 (Gulf Power Company Project), between the Issuer and Xxxxxxx Bank,
as Trustee, pursuant to which the Bonds are authorized to be issued, and
including any indenture supplemental thereto.
"Insurance Agreement" means the Insurance Agreement between the
Company and Ambac Assurance Corporation dated as of September 26, 2002 relating
to the Bonds.
.........."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.
"Prior Bonds" has the same meaning given and assigned to it in the
Resolution (as hereinafter defined).
"Project" has the same meaning given and assigned to it in the
Resolution.
"Resolution" means the resolution of the Issuer adopted on
September 18, 2002 in connection with the sale and issuance of the Bonds and the
current refunding of the Prior Bonds.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The Company
represents that it has caused the acquisition, construction, installation and
equipping of the Project to be completed substantially in accordance with the
plans for the Project.
SECTION 2.2. Issuance of the Bonds. In order to provide funds for the
purposes set forth in Section 3.1 hereof, the Issuer agrees that it will
initially issue and deliver the Bonds to the purchasers thereof at a price to be
approved in advance by the Company and apply and deposit the proceeds thereof in
accordance with the terms of the Indenture and Section 3.1 hereof. The Indenture
shall be satisfactory in form and substance to the Company and shall provide the
manner in which, and the purposes for which, proceeds of Bonds may be used and
invested.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the Loan
to the Company in order to currently refund all of the outstanding Prior Bonds.
The Company hereby agrees to cause the proceeds of the Bonds to be applied
exclusively to such purpose and to cause the current redemption of all of the
outstanding Prior Bonds to be effected within 90 days after the date of initial
issuance of the Bonds.
SECTION 3.2. Delivery of Note by Company; Other Amounts Payable. In
order to evidence the Loan and the obligation of the Company to repay the same,
the Company shall execute and deliver the Note in a principal amount equal to
the aggregate principal amount of the Bonds and providing for payments which
correspond in time and amount with payments due on the Bonds. The Note shall be
dated the date of the initial authentication of, and mature on the same maturity
date as, the Bonds. If (i) on the date any payments on the Bonds are due, there
are any available moneys on deposit with the Trustee which are not being held
for the payment of Bonds due and payable but which have not been presented for
payment, or (ii) on any date on which Bonds are required to be purchased
pursuant to the Bonds or Article III of the Indenture, there are available
moneys on deposit with the Trustee held for the payment of the purchase price
which are not being held for the payment of Bonds which have not been presented
for payment, then, in each case, such moneys shall be credited against the
payment then due under the Note, first in respect of interest and then, to the
extent of remaining moneys, in respect of principal.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee and any paying agents and tender agents under the
Indenture, such fees, charges and reasonable expenses to be paid directly to the
Trustee or paying agents or tender agents, as the case may be, for their
respective accounts as and when such fees, charges and reasonable expenses
become due and payable, (ii) the fees, charges and reasonable expenses of the
Issuer, (iii) any expenses and costs incurred or to be incurred in connection
with the sale and issuance of the Bonds, (iv) all amounts owed under the
Arbitrage Rebate Agreement, including but not limited to the Rebate Requirement,
and (v) any expenses in connection with any redemption of the Bonds and the
Prior Bonds.
SECTION 3.3. Obligation of the Company Unconditional. The obligation of
the Company to make payments as provided in the Note and to perform and observe
the other agreements on its part contained herein shall be absolute and
unconditional notwithstanding any change in the tax or other laws of the United
States of America or of the State of Mississippi or any political subdivision of
either thereof or any failure of the Issuer to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Nothing contained in this
Section 3.3 shall be construed to release the Issuer from the performance of any
of the agreements on its part herein contained; and, in the event the Issuer
should fail to perform any such agreement on its part, the Company may institute
such action against the Issuer as the Company may deem necessary to compel
performance or recover damages for nonperformance so long as such action shall
not violate the agreements on the part of the Company contained in the preceding
sentence, but in no event shall the Company be entitled to any diminution of the
amounts payable under the 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 to the Issuer under the second
paragraph of Section 3.2 and 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. The Company will pay and
discharge and will indemnify and hold harmless the Issuer and the Trustee and
their respective officers, employees and agents from (a) any lien or charge upon
payments by the Company to the Issuer under the Note or hereunder, (b) any
taxes, assessments, impositions and other charges upon payments by the Company
to the Issuer under the Note or hereunder and (c) any and all liability,
damages, costs and expenses arising out of or resulting from the transactions
contemplated by this Agreement and the Indenture or in connection with the
Project, including the reasonable fees and expenses of counsel (in each case
provided in this Section with respect to the Trustee and its officers, employees
and agents, only in the absence of negligence or willful misconduct). 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 or
the Trustee, as the case may be, will give prompt written notice to the Company,
and the Company shall have the sole right and duty to assume, and will assume,
the defense thereof, with full power to litigate, compromise or settle the same
in its sole discretion.
SECTION 4.3. Inspection of the Project. The Company agrees that the
Issuer and its duly authorized agents may at reasonable times enter upon the
Project site and examine and inspect the Project and the books and records of
the Company with respect to the Project.
SECTION 4.4. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees that during the
term of this Agreement it will maintain its corporate existence and
qualification to do business in the State of Mississippi, will not dissolve or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided, that the Company
may, without violating the agreements contained in this Section 4.4, 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, (i) 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 Mississippi corporation or is
qualified to do business in Mississippi as a foreign corporation and (ii) such
consolidation, merger or transfer of assets does not result in the loss of the
exclusion from gross income for federal income tax purposes of interest on the
Bonds.
SECTION 4.5. 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 timely 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 4.5 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, provided such annual report contains the
information required by the preceding sentence.
SECTION 4.6. 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 4.7. Maintenance of Project by Company. The Company agrees that
during the term of this Agreement it will pay all costs of operating,
maintaining and repairing the Project; provided, however, that the Company shall
not be under any obligation to renew, repair or replace any inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary portion of the
Project. In any instance where the Company determines that any portion of the
Project has become inadequate, obsolete, worn-out, unsuitable, undesirable or
unnecessary, the Company may remove such portion of the Project and sell,
trade-in, exchange or otherwise dispose of such removed portion without any
notice to or responsibility or accountability to the Issuer, the Trustee or the
Bondholders therefor.
SECTION 4.8. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture for the
redemption or purchase of Bonds upon receipt, not less than ten days (or such
shorter period as is acceptable to the Trustee and the Issuer) 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 4.9. Tax Covenants. The Company covenants and agrees that it
will not use or permit the use by any person of the Project or any of the funds
provided by the Issuer hereunder or any other of its funds, directly or
indirectly, or direct the Trustee to invest any funds held by it under the
Indenture or this Agreement, in such manner as would, or enter into, or allow
any "related person" (as defined in Section 147(a) of the Code) to enter into,
any arrangement, formal or informal, that would, or take or omit to take any
other action that would, cause any Bond to be an "arbitrage bond" within the
meaning of Section 148(a) of the Code or result in the loss of the exclusion
from gross income for federal income tax purposes of the interest paid on the
Bonds to the extent afforded under the Code. The Company acknowledges Section
6.04 of the Indenture and agrees to perform all duties imposed upon it by such
Section including but not limited to its obligations under the Arbitrage Rebate
Agreement. Insofar as said Section imposes duties and responsibilities on the
Company, it is specifically incorporated herein by reference.
SECTION 4.10. Compliance with Indenture. The Company agrees to perform
and comply with all provisions of the Indenture applicable to it. In addition,
the Company shall have and enjoy all rights and options granted to it by the
Indenture.
SECTION 4.11. Compliance with Prior Indenture . The Company certifies
that it is in full compliance in all material respects with the terms and
provisions applicable to it of the Prior Indenture and that no Event of Default
(as defined in the Prior Indenture) has occurred thereunder.
SECTION 4.12. No Warranty of Suitability by the Issuer. The Issuer
makes no warranty either express or implied as to the Project, including its
suitability for the Company's purposes or needs.
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.
(c) The dissolution or liquidation of the Company, except as
permitted by Section 4.4 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.
(d) The occurrence of an event of default under the Insurance
Agreement.
The foregoing provisions of Section 5.1(b) are subject to the limitation that,
if by reason of force majeure the Company is unable in whole or in part to carry
out its agreements herein contained other than those set forth in Sections 4.4
and 4.9 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 Mississippi or any of their departments,
agencies or officials or of any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fire; hurricanes;
tornadoes; storms; floods; washouts; droughts; arrests; restraints of government
and people; civil disturbances; explosions; breakage or accident to machinery,
transmission lines, pipes or canals; partial or entire failure of utilities; or
any other cause or event not reasonably within the control of the Company. The
Company agrees, however, to remedy to the extent practicable with all reasonable
dispatch the effects of any force majeure preventing the Company from carrying
out its agreements; provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of the Company,
and the Company shall not be required to make settlement of strikes, lockouts
and other industrial disturbances by acceding to the demands of the opposing
party or parties when such course is in the judgment of the Company unfavorable
to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of Default shall
have occurred and be continuing, the Issuer may, in addition to any other remedy
now or hereafter existing at law, in equity or by statute, take either or both
of the following remedial steps:
(a) By written notice to the Company, the Issuer may declare
all amounts payable pursuant to the Note to be immediately due and
payable, whereupon the same shall become immediately due and payable;
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 any paying agents and tender 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 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 or the Trustee, as the case may be, 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. 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, the Issuer and any paying agents and
tender 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, at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxxx 00000, Attention: Executive Director; if to the Company and via
United States mail or facsimile at Xxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx
00000-0000, Attention: Treasurer, Facsimile No. (000) 000-0000, 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 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust. 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 4.4 hereof, and shall inure to the benefit of the Trustee to the extent
stated herein.
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
Mississippi.
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.
SECTION 6.10. Amounts Remaining in the Bond Fund. Any amounts remaining
in the Bond Fund upon termination of this Agreement shall, to the extent
provided in Section 4.10 of the Indenture, belong to and be paid to the Company
by the Trustee.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
MISSISSIPPI BUSINESS FINANCE CORPORATION
[SEAL] By:
Executive Director
ATTEST:
Secretary
GULF POWER COMPANY
[SEAL] By:
Vice President & Chief Financial Officer
ATTEST:
Secretary
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 26th day of September, 2002, within my
jurisdiction, the within named Xxxxxxx X. Xxxxx and Xxxxx Xxxxxx Xxxxx, Sr., who
acknowledged that they are the Executive Director and Secretary, respectively,
of the Mississippi Business Finance Corporation, and that in said representative
capacities they executed the above and foregoing instrument, after first having
been duly authorized so to do.
[SEAL]
----------------------------------
Notary Public
My Commission Expires:
---------------------
STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 26th day of September, 2002, within my
jurisdiction, the within named Xxxxxx X. Xxxxxxx and Xxxxx Boston who
acknowledged that they are the Vice President and Chief Financial Officer 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.
[SEAL]
------------------------------------------------
Notary Public
My Commission Expires:
----------------------
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
$13,000,000 September 26, 2002
GULF POWER COMPANY (the "Company"), a corporation organized and
existing under the laws of the State of Maine, acknowledges itself indebted and
for value received hereby promises to pay to the order of the Mississippi
Business Finance Corporation (the "Issuer"), and its successors and assigns, the
principal sum of THIRTEEN MILLION DOLLARS ($13,000,000) together with interest
on the unpaid principal balance thereof from the date hereof until the Company'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 the Company promises to pay when due, amounts
which shall equal the premium, if any, due on such Bonds in connection with the
redemption thereof. The Company 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 Issuer to the Company and the obligation of the
Company to repay the same and shall be governed by and be payable in accordance
with the terms and conditions of a loan agreement (the "Agreement") between the
Issuer and the Company dated as of September 1, 2002, pursuant to which the
Issuer has loaned to the Company the proceeds of the sale of the Issuer's
$13,000,000 of Solid Waste Disposal Facilities Revenue Refunding Bonds, Series
2002 (Gulf Power Company Project) (the "Bonds"). This Note (together with the
Agreement) has been assigned to Xxxxxxx Bank (the "Trustee"), acting pursuant to
a trust indenture dated as of September 1, 2002 (the "Indenture") between the
Issuer and the Trustee, and may not be assigned by the Trustee except to a
successor Trustee pursuant to the terms of the Indenture. Such assignment is
made as security for the Bonds. The Bonds are dated and bear interest in
accordance with the provisions of the Indenture, and mature on September 1,
2028. The Bonds are subject to redemption prior to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon are to be
made by paying to the Trustee, as assignee of the Issuer, in funds which will be
immediately available on the day payment is due, amounts which, and at or before
times which, shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in whatever manner
the same shall become due, whether at stated maturity, upon redemption or
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 the Company nor any persons executing this Note
shall be liable personally or shall be subject to any personal liability or
accountability by reason of the issuance hereof.
IN WITNESS WHEREOF, Gulf Power Company has caused this Note to be
executed in its corporate name and on its behalf by its President, its Treasurer
or a Vice President by his manual signature, and its corporate seal to be
impressed hereon and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
GULF POWER COMPANY
By:
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Vice President & Chief Financial Officer
Attest:
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Assistant Secretary
ASSIGNMENT
For value received, pay this promissory note to the order of Xxxxxxx
Bank, as Trustee under the Trust Indenture, dated as of September 1, 2002,
between the Mississippi Business Finance Corporation and Xxxxxxx Bank, as
Trustee, securing the payment of Mississippi Business Finance Corporation Solid
Waste Disposal Facilities Revenue Refunding Bonds, Series 2002 (Gulf Power
Company Project), in the original principal amount of $13,000,000 without
recourse.
MISSISSIPPI BUSINESS FINANCE CORPORATION
By:
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Executive Director
