Exhibit B-1
MISSISSIPPI BUSINESS FINANCE CORPORATION
and
GULF POWER COMPANY
LOAN AGREEMENT
Dated as of February 1, 1996
Relating to $21,200,000 Pollution Control
Revenue Refunding Bonds, Series 1996
(Gulf Power Company Project)
LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Loan Agreement)
PAGE
ARTICLE I
DEFINITIONS................................................................ 1
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the
Project........................................ 2
SECTION 2.2. Issuance of Series 1996 Bonds;
Additional Bonds............................... 2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer.................................. 3
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable......................................... 3
SECTION 3.3. Obligation of the Company Unconditional......... 4
SECTION 3.4. First Mortgage Bonds............................ 4
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Notes, the Agreement and the First
Mortgage Bonds.................................. 5
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. No Warranty of Suitability by the Issuer........ 5
SECTION 4.2. Use of Project.................................. 5
SECTION 4.3. Indemnity Against Claims........................ 5
SECTION 4.4. Inspection of the Project....................... 6
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 4.5. The Company to Maintain Its Corporate
Existence; Conditions Under Which
Exceptions Permitted........................... 6
SECTION 4.6. Annual Statement................................ 7
SECTION 4.7. Further Assurances and Corrective
Instruments.................................... 7
SECTION 4.8. Maintenance of Project by Company............... 7
SECTION 4.9. Redemption or Purchase of Bonds................. 7
SECTION 4.10. Tax Covenants................................... 8
SECTION 4.11. Ad Valorem Taxes . . . . . . . .. . . . . . . . 8
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default............................... 8
SECTION 5.2. Remedies on Default............................. 10
SECTION 5.3. Agreement to Pay Attorneys' Fees
and Expenses................................... 10
SECTION 5.4. No Additional Waiver Implied by
One Waiver..................................... 11
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement.......................... 11
SECTION 6.2. Notices......................................... 11
SECTION 6.3. Binding Effect.................................. 11
SECTION 6.4. Severability.................................... 12
SECTION 6.5. Amounts Remaining in the Bond Fund.............. 12
SECTION 6.6. Amendments...................................... 12
SECTION 6.7. Execution in Counterparts....................... 12
SECTION 6.8. Applicable Law.................................. 12
SECTION 6.9. Captions........................................ 12
SECTION 6.10. Other Financing................................. 12
TESTIMONIUM
SIGNATURES AND SEALS
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
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LOAN AGREEMENT dated as of February 1, 1996 between the MISSISSIPPI
BUSINESS FINANCE CORPORATION, a public corporation duly created and validly
existing pursuant to the Constitution and laws of the State of Mississippi (the
"Issuer"), authorized to exercise the powers conferred by Title 57, Chapter 10,
Article 7 of the Mississippi Code of 1972, as amended and supplemented (the
"Act"), and GULF POWER COMPANY, a corporation organized and existing under the
laws of the State of Maine and qualified and doing business as a foreign
corporation in the State of Mississippi (the "Company"), evidencing the
agreement of the parties hereto.
In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided that in the
performance of the agreements of the Issuer herein contained, any obligation it
may thereby incur for the payment of money shall not be a general debt,
liability or obligation of the Issuer, or of the State of Mississippi or any
political subdivision thereof but shall be payable solely out of the revenue and
proceeds derived from this Agreement and the Notes (hereinafter defined), the
sale of the Bonds referred to herein and any amounts received from the First
Mortgage Bonds referred to in Section 3.4 hereof):
ARTICLE I
DEFINITIONS
"Additional Bonds", "Bond Fund", "Bondholder", "Bonds", "Code",
"Government Obligations", "1954 Code", "Rebate Agreement" and "Trustee" have the
same meanings given and assigned to such words in Article I of the Indenture
(hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
"Event of Default" means any of the occurrences enumerated
in Section 5.1 of this Agreement.
"First Mortgage" means the Indenture dated as of September 1, 1941
between the Company and The Chase Manhattan Bank (National Association) and The
Citizens & Peoples National Bank of Pensacola, as trustees, as heretofore and
hereafter supplemented and amended, including but not limited to the
Supplemental Indenture dated as of February 1, 1996.
"First Mortgage Bonds" means first mortgage bonds issued under the
First Mortgage pursuant to, and having the terms described in, Section 3.4
hereof.
"Indenture" means the Trust Indenture dated as of February 1, 1996,
relating to the Bonds, between the Issuer and Xxxxxxx Bank, Gulfport,
Mississippi, 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 discount, if any,
and original issue discount, if any) of the sale of the Bonds, exclusive of any
accrued interest paid by the initial purchasers of the Bonds upon the delivery
thereof.
"Notes" means the non-negotiable promissory notes of the Company issued
pursuant to Section 3.2 hereof, in the form set forth in Exhibit A hereto.
"Original Agreement" means the Amended and Restated Installment Sale
Agreement dated as of May 1, 1981, between Xxxxxxx County, Mississippi, and the
Company.
"Project" means the pollution control facilities described
in the Original Agreement.
"Series 1991 Bonds" means the $21,200,000 Xxxxxxx County,
Mississippi Pollution Control Revenue Refunding Bonds (Gulf Power
Company Project) Series 1991.
"Series 1996 Bonds" means the bonds authorized to be issued under
Section 2.02 of the Indenture.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The Company
represents that the acquisition, installation and construction of the Project
have been completed pursuant to the Original Agreement.
SECTION 2.2. Issuance of Series 1996 Bonds; Additional Bonds. In order
to provide funds to refund the Series 1991 Bonds, the Issuer agrees that it will
initially issue and deliver the Series 1996 Bonds to the purchasers thereof at a
price to be approved in advance by the Company and apply and deposit the
proceeds thereof in accordance with the terms of the Indenture. The Indenture
shall be satisfactory in form and substance to the Company and shall provide the
manner in which, and the purposes for which, proceeds of Bonds may be used and
invested.
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If no Event of Default shall have occurred and be continuing, the
Issuer will authorize the sale of and use its best efforts to sell from time to
time, to the extent permitted by law, Additional Bonds, in amounts specified by
the Company and upon the terms and conditions provided in the Indenture, for any
purpose permitted by the Indenture. The Issuer will deposit the proceeds of any
such Additional Bonds with the Trustee in accordance with the terms of the
Indenture.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the Loan
to the Company for the purpose, in the case of the proceeds of the Series 1996
Bonds, of redeeming the Series 1991 Bonds within 90 days after the date of
initial issuance of the Series 1996 Bonds. The Company hereby agrees to cause
the proceeds of the Series 1996 Bonds to be applied exclusively to the foregoing
purpose and to cause the Series 1991 Bonds to be redeemed within 90 days after
the date of initial issuance of the Series 1996 Bonds.
SECTION 3.2. Delivery of Notes by Company; Other Amounts Payable. In
order to evidence the Loan and the obligation of the Company to repay the same,
the Company shall execute and deliver for each series of Bonds a Note in a
principal amount equal to the aggregate principal amount of, and having the same
stated rate or rates of interest as, such series of Bonds. Each Note shall be
dated the date of the initial issuance of, and mature on the same maturity date
or dates as, the series of Bonds issued concurrently therewith. If, at the date
any payment on the Bonds is due, there are any available moneys in the Bond
Fund, such moneys shall be credited against the payment then due under the
Notes, first in respect of interest and then, to the extent of remaining moneys,
in respect of principal.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee and any paying agents under the Indenture, such fees,
charges and reasonable expenses to be paid directly to the Trustee or paying
agents for their respective accounts as and when such fees, charges and
reasonable expenses become due and payable, (ii) any expenses and costs incurred
or to be incurred by virtue of the issuance and sale of the Bonds, (iii) any
expenses in connection with any redemption of the Bonds, (iv) any expenses in
connection with the redemption of the aforementioned Series 1991 Bonds and (v)
any amounts owed under the Rebate Agreement.
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SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make the payments as provided in
this Agreement and the Notes and to perform and observe the other
agreements on its part contained herein shall be absolute and
unconditional notwithstanding failure of the title to the Project
or any part thereof, loss of title to (or the temporary use of)
the Project by virtue of the exercise by others of the power of
eminent domain, any acts or circumstances that may constitute
failure of consideration, destruction of or damage to the
Project, commercial frustration of purpose, any change in the tax
or other laws of the United States of America or of the State of
Mississippi or any political subdivision of either thereof or any
failure of the Issuer to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Nothing
contained in this Section 3.3 shall be construed to release the
Issuer from the performance of any of the agreements on its part
herein contained; and, in the event the Issuer should fail to
perform any such agreement on its part, the Company may institute
such action against the Issuer as the Company may deem necessary
to compel performance or recover its damages for nonperformance
so long as such action shall not violate the agreements on the
part of the Company contained in the preceding sentence, but in
no event shall the Company be entitled to any diminution of the
amounts payable under the Notes and Section 3.2 hereof. The
Company may, however, at its own cost and expense and in its own
name or in the name of the Issuer, prosecute or defend any action
or proceeding or take any other action involving third persons
which the Company deems reasonably necessary in order to secure
or protect its right of possession, occupancy and use hereunder,
and in such event the Issuer hereby agrees to cooperate fully
with the Company and to take all action necessary to effect the
substitution of the Company for the Issuer in any such action or
proceeding if the Company shall so request.
SECTION 3.4. First Mortgage Bonds. Concurrently with the Issuer's
delivery of each series of Bonds to the Trustee, the Company will execute and
deliver to the Trustee, in order to secure the Company's obligations under this
Agreement and the Note issued concurrently therewith, First Mortgage Bonds,
registered in the name of the Trustee equal in principal amount to such series
of Bonds and having the same stated rate or rates of interest and the same
maturity date or dates as such series of Bonds; provided, however, that if such
series of Bonds is issued for the purpose of refunding all of the Bonds then
outstanding, the Company may elect not to deliver such First Mortgage Bonds.
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SECTION 3.5. Assignment and Pledge of Payments and Rights Under the
Notes, the Agreement and the First Mortgage Bonds. The Issuer shall assign and
pledge to the Trustee as security under the Indenture all rights, title and
interests of the Issuer in and to (i) the Notes and all payments thereunder,
(ii) this Agreement and all moneys receivable hereunder (except for payments
under Sections 4.3 and 5.3 hereof) and (iii) the First Mortgage Bonds. The
Company assents to such assignment and hereby agrees that, as to the Trustee,
its obligations to make such payments shall be absolute and shall not be subject
to any defense or any right of set-off, counterclaim or recoupment arising out
of any breach by the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or liability at any
time owing to the Company by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. No Warranty of Suitability by the Issuer.
The Issuer makes no warranty either express or implied as to the
Project, including its suitability for the Company's purposes or
needs.
SECTION 4.2. Use of Project. The Issuer does hereby covenant and agree
that it will not take any action, other than pursuant to the exercise of its
rights under Section 5.2 of this Agreement, to prevent the Company from having
possession and enjoyment of the Project during the term of this Agreement and
will, at the request of the Company and at the Company's cost, cooperate with
the Company in order that the Company may have possession and enjoyment of the
Project. The Issuer hereby acknowledges that it shall have no rights to the use
or possession of the Project. The Issuer hereby further acknowledges that the
Project will not constitute any part of the security for the Bonds other than
any interest in the Company's property shared by all holders of the Company's
first mortgage bonds issued under the First Mortgage, including the First
Mortgage Bonds.
SECTION 4.3. Indemnity Against Claims. The Company will pay and
discharge and will indemnify and hold harmless the Issuer and the Trustee from
(a) any lien or charge upon payments by the Company to the Issuer under the
Notes, the First Mortgage Bonds or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the Issuer under
the Notes, the First Mortgage Bonds or hereunder and (c) any and all
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liability, damages, costs and expenses arising out of or resulting from the
transactions contemplated by this Agreement and the Indenture or in any way
related to the Project, including the reasonable fees and expenses of counsel.
If any such lien or charge is sought to be imposed upon payments, or any such
taxes, assessments, impositions or other charges are sought to be imposed, or
any such liability, damages, costs and expenses are sought to be imposed, the
Issuer and/or the Trustee will give prompt written notice to the Company, and
the Company shall have the sole right and duty to assume, and will assume, the
defense thereof, with full power to litigate, compromise or settle the same in
its sole discretion.
SECTION 4.4. Inspection of the Project. The Company agrees that the
Issuer and its duly authorized agents may at reasonable times enter upon the
Project site and examine and inspect the Project and the books and records of
the Company with respect to the Project.
SECTION 4.5. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees that during the
term of this Agreement it will maintain its corporate existence and
qualification to do business in the State of Mississippi, will not dissolve or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided, that the Company
may, without violating the agreements contained in this Section 4.5, consolidate
with or merge into another domestic corporation (i.e., a corporation
incorporated and existing under the laws of one of the states of the United
States of America or under the laws of the United States of America) or permit
one or more other corporations to consolidate with or merge into it, or sell or
otherwise transfer to another domestic corporation all or substantially all of
its assets as an entirety and thereafter dissolve, provided that, in the event
the Company is not the surviving, resulting or transferee corporation, as the
case may be, the surviving, resulting or transferee corporation assumes, accepts
and agrees in writing to pay and perform all of the obligations of the Company
herein and under the Notes and is a Mississippi corporation or is qualified to
do business in the State of Mississippi as a foreign corporation and that such
consolidation or merger does not result in the loss of the exclusion from gross
income for federal income tax purposes of interest on the outstanding Bonds.
SECTION 4.6.Annual Statement. The Company agrees to have
an annual audit made by its regular independent public
accountants and within 180 days after the close of each fiscal
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year to furnish the Trustee and any Bondholder who may so request a balance
sheet and statement of income and surplus showing the financial condition of the
Company and its consolidated subsidiaries, if any, at the close of such fiscal
year and the results of operations of the Company and its consolidated
subsidiaries, if any, for such fiscal year, accompanied by a certificate or
opinion of said accountants. The requirements of the Company pursuant to this
Section 4.6 may be satisfied by the submission to the Trustee and each
Bondholder who may request such information of the Company's annual report to
its shareholders, so long as the Company prepares such an annual report.
SECTION 4.7. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Agreement.
SECTION 4.8. Maintenance of Project by Company. The
Company agrees that during the term of this Agreement it will pay
all costs of operating, maintaining and repairing the Project;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project. In any instance where the Company determines that any
portion of the Project has become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary, the Company may remove
such portion of the Project and sell, trade-in, exchange or
otherwise dispose of such removed portion without any
responsibility or accountability to the Issuer, the Trustee or
the Bondholders therefor.
SECTION 4.9. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture and then
applicable federal and state laws and regulations for the redemption or purchase
of Bonds upon receipt by the Issuer and the Trustee from the Company of a
written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase, which
date, in the case of a redemption of Bonds, shall be at
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least forty-five (45) days subsequent to the receipt by the
Trustee of such notice; and
(c) in the case of a redemption of Bonds, directions
to mail a notice of redemption.
In the case of a purchase of Bonds, the written notice to the Trustee shall, if
available moneys in the Bond Fund are insufficient to purchase the principal
amount of Bonds specified in (a) above, be accompanied by a deposit into the
Bond Fund of cash or Government Obligations sufficient, together with other
moneys then available in the Bond Fund, to make the directed purchase of Bonds.
SECTION 4.10. Tax Covenants. The Company covenants and agrees that it
will not use or permit the use by any person of any of the funds provided by the
Issuer hereunder or any other of its funds, directly or indirectly, or direct
the Trustee to invest any funds held by it under the Indenture or this
Agreement, in such manner as would, or enter into, or allow any "related person"
(as defined in Section 103(b)(13) of the 1954 Code) to enter into, any
arrangement, formal or informal, that would, or take or omit to take any other
action that would, cause any Bond to be an "arbitrage bond" within the meaning
of Section 148(a) of the Code or result in the loss of the exclusion from gross
income for federal income tax purposes of the interest paid on the Bonds to the
extent afforded under Section 103 of the 1954 Code. The Company acknowledges
Section 6.02 of the Indenture and agrees to perform all duties imposed upon it
by such Section including but not limited to its obligations under the Rebate
Agreement. Insofar as said Section imposes duties and responsibilities on the
Company, it is specifically incorporated herein by reference.
SECTION 4.11. Ad Valorem Taxes. The Project shall be
subject to assessment thereof for ad valorem taxes in the manner
provided by law.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following
shall be an "Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the amounts
required to be paid pursuant to the Notes or the failure by the Company
to pay within 30 days of the date due any other amounts required to be
paid pursuant to this Agreement.
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(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be observed or
performed hereunder, other than as referred to in subsection (a) of
this Section 5.1, for a period of 60 days after written notice,
specifying such failure and requesting that it be remedied, is given to
the Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period prior to
its expiration; provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, the Issuer and the
Trustee will not unreasonably withhold their consent to an extension of
such period if corrective action is instituted by the Company within
the applicable period and diligently pursued until the failure is
remedied.
(c) The dissolution or liquidation of the Company, except as
permitted by Section 4.5 hereof, or the commencement by the Company of
any case or proceeding seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other similar law
of the United States or any state, or adjudication of the Company as
bankrupt, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any proceeding
for its reorganization instituted under the provisions of Title 11 of
the United States Code, as amended, or under any similar statutory
provision which may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the limitation that,
if by reason of force majeure the Company is unable in whole or in part to carry
out its agreements herein contained other than those set forth in Sections 4.5
and 4.10 hereof, an Event of Default shall not be deemed to have occurred during
the continuance of such inability. The term "force majeure" as used herein shall
mean the following: acts of God; strikes; lockouts or other industrial
disturbances; acts of public enemies; orders of any kind of the government of
the United States or of any state or any of their departments, agencies or
officials or of any civil or military authority; insurrections; riots;
epidemics; landslides; lightning; earthquakes; fire; hurricanes; tornadoes;
storms; floods; washouts; droughts; arrests; restraints of government and
people; civil disturbances; explosions; breakage or accident to
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machinery, transmission lines, pipes or canals; partial or entire failure of
utilities; or any other cause or event not reasonably within the control of the
Company. The Company agrees, however, to remedy to the extent practicable with
all reasonable dispatch the effects of any force majeure preventing the Company
from carrying out its agreements; provided that the settlement of strikes,
lockouts and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required to make
settlement of strikes, lockouts and other industrial disturbances by acceding to
the demands of the opposing party or parties when such course is in the judgment
of the Company unfavorable to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of Default shall
have occurred and be continuing, the Issuer may, in addition to any other remedy
now or hereafter existing at law, in equity or by statute, take either or both
of the following remedial steps:
(a) By written notice to the Company, the Issuer may declare
all amounts payable pursuant to the Notes to be immediately due and
payable, whereupon the same shall become immediately due and payable.
(b) The Issuer may take whatever action at law or in equity
may appear necessary or desirable to collect the amounts referred to in
(a) above then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section 5.2 shall be
paid into the Bond Fund and applied in accordance with the provisions of the
Indenture or, if the Bonds have been 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 Notes or this
Agreement and the Issuer should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay to the Issuer
the reasonable fees of such
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attorneys and such other reasonable expenses so incurred by the
Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In the event
any provision contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall remain in
full force and effect from the date hereof until such time as all of the
outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of the Indenture, whichever shall first occur,
and the fees and expenses of the Trustee and any paying agents and all other
amounts payable by the Company under this Agreement and the Notes shall have
been paid.
SECTION 6.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid, addressed as
follows: if to the Issuer, at 1306 Xxxxxx Xxxxxxx Building, 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Executive Director; if to the Company, at
000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Treasurer, with
copies to Southern Company Services, Inc., 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Corporate Finance Department; and if to the Trustee,
at 0000 00xx Xxxxxx, 0 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Trust Department. A duplicate copy of each notice, certificate or other
communication given hereunder by either the Issuer or the Company to the other
shall also be given to the Trustee. The Issuer, the Company and the Trustee may,
by notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Section 4.5 hereof.
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SECTION 6.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 6.5. Amounts Remaining in the Bond Fund. Any amounts remaining
in the Bond Fund upon termination of this Agreement shall, to the extent
provided by Section 5.08 of the Indenture, belong to and be paid to the Company
by the Trustee.
SECTION 6.6. Amendments. This Agreement may not be effectively
terminated except in accordance with the provisions hereof and may not be
effectively amended except by a written agreement in accordance with Article XI
of the Indenture and signed by the parties hereto.
SECTION 6.7. Execution in Counterparts. This Agreement
may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the
same instrument.
SECTION 6.8. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Mississippi.
SECTION 6.9. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Agreement.
SECTION 6.10. Other Financing. Notwithstanding anything in this
Agreement to the contrary, the Issuer and the Company may hereafter enter into
agreements to provide for the financing or refinancing of costs of the Project
or any portion thereof in lieu of or in addition to the provisions herein for
Additional Bonds.
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IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
MISSISSIPPI BUSINESS FINANCE
CORPORATION
[SEAL]
By:
Executive Director
ATTEST:
Secretary
GULF POWER COMPANY
[SEAL]
By:
Vice President
ATTEST:
Secretary
STATE OF MISSISSIPPI )
) ss:
COUNTY OF XXXXXXXX )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ____ day of February, 1996, within my
jurisdiction, the within named Xxxxxxx X. Xxxxx and Xxxxx Xxxxxx Xxxxx, Sr., who
acknowledged that they are the Executive Director and Secretary of the
Mississippi Business Finance Corporation, and that in said representative
capacities they executed the above and foregoing instrument, after first have
been duly authorized so to do.
[SEAL]
Notary Public
My Commission Expires:
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STATE OF FLORIDA )
) ss:
COUNTY OF ESCAMBIA )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ____ day of February, 1996, within my
jurisdiction, the within named X. X. Xxxxxxxxxx and Xxxxxx X. Xxxx, who
acknowledged that they are the Vice President and Secretary of Gulf Power
Company, a Maine corporation, and that for and on behalf of the said corporation
and as its act and deed they executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
[SEAL]
Notary Public
My Commission Expires:
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EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
$__________ [Date]
GULF POWER COMPANY, a corporation organized and existing under the laws
of the State of Maine (the "Company"), acknowledges itself indebted and for
value received hereby promises to pay to the order of the Mississippi Business
Finance Corporation (the "Issuer"), and its successors and assigns, the
principal sum of ___________________ DOLLARS ($________ ) together with interest
on the unpaid principal balance thereof from the date hereof until the Company's
obligation with respect to the payment of such sum shall be discharged at the
rate borne by the Bonds referred to below. As additional interest hereon there
shall be payable, and the Company promises to pay when due, amounts which shall
equal the premium, if any, due on such Bonds in connection with the redemption
thereof.
This Note is issued to evidence a portion of the Loan (as defined in
the Agreement hereinafter referred to) of the Issuer to the Company and the
obligation of the Company to repay the same and shall be governed by and be
payable in accordance with the terms and conditions of a loan agreement (the
"Agreement") between the Issuer and the Company dated as of February 1, 1996,
pursuant to which the Issuer has loaned to the Company the proceeds of the sale
of the Issuer's $__________ of Pollution Control Revenue Refunding Bonds, Series
_____ (Gulf Power Company Project) (the "Bonds"). Additional similar Notes may
be issued by the Company as provided in the Agreement. This Note (together with
the Agreement) has been assigned to Xxxxxxx Bank (the "Trustee"), acting
pursuant to a trust indenture dated as of February 1, 1996 (the "Indenture")
between the Issuer and the Trustee, and may not be assigned by the Trustee
except to a successor Trustee pursuant to the terms of the Indenture. Such
assignment is made as security for the Bonds, and any other bonds which are or
may at any time be issued and outstanding under the Indenture. The Bonds are
dated and bear interest in accordance with the provisions of the Indenture,
payable on ____________________ and __________________________ in each year
commencing ___________________ at the rate of ____________________ percent
(____%) per annum, and mature on ______________________. The Bonds are subject
to redemption prior to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon are to be
made by paying to the Trustee, as assignee of the Issuer, in funds which will be
immediately available on the day payment is due, amounts which, and at or before
times which, shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in whatever manner
the same shall become due, whether at stated
maturity, upon redemption or declaration or otherwise. If at the date any
payments on the Bonds are due there are any available moneys in the Bond Fund
established under the Indenture, such moneys shall be credited against the
payment then due hereunder, first in respect of interest and then, to the extent
of remaining moneys, in respect of principal. Upon the occurrence of an Event of
Default, as defined in the Agreement, the principal of and interest on this Note
may be declared immediately due and payable as provided in the Agreement.
Neither the officers of the Company nor any persons executing this Note
shall be liable personally or shall be subject to any personal liability or
accountability by reason of the issuance hereof.
IN WITNESS WHEREOF, Gulf Power Company has caused this Note to be
executed in its corporate name and on its behalf by its President, its Treasurer
or a Vice President by his manual signature, and its corporate seal to be
impressed hereon and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
GULF POWER COMPANY
[SEAL]
By:__________________________
Title:______________________
Attest:_______________________
Title:________________________
ASSIGNMENT
Pay to the order of Xxxxxxx Bank, as assignee of the Mississippi
Business Finance Corporation, under the Trust Indenture, dated as of February 1,
1996, between the Mississippi Business Finance Corporation and Xxxxxxx Bank, as
Trustee, securing the payment of Mississippi Business Finance Corporation
Pollution Control Revenue Refunding Bonds, Series _____ (Gulf Power Company
Project), in the original principal amount of
$---------------.
Dated:__________________
MISSISSIPPI BUSINESS FINANCE
CORPORATION
By:__________________________
Title:_______________________
