Exhibit 4
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GULF POWER COMPANY
TO
THE CHASE MANHATTAN BANK (National Association)
(Formerly The Chase Manhattan Bank, Successor by Merger to
The Chase National Bank of the City of New York)
As Trustee.
____________________
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
6 7/8% Series due January 1, 2026
____________________
Dated as of January 1, 1996
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This instrument was prepared by G. Xxxxxx Xxxxxxx, Xx., Seventh
Floor, Xxxxxx Building, 0 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
00000, and Xxxxxx X. Xxxxxxxx, Xx., 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000.
SUPPLEMENTAL INDENTURE, dated as of January 1, 1996, made
and entered into by and between GULF POWER COMPANY, a corporation
organized and existing under the laws of the State of Maine
(hereinafter commonly referred to as the "Company"), and THE
CHASE MANHATTAN BANK (National Association), a corporation
organized and existing under the laws of the United States of
America, with its principal office in the Borough of Manhattan,
The City of New York, formerly The Chase Manhattan Bank,
successor by merger to The Chase National Bank of the City of New
York, as trustee (hereinafter commonly referred to as the
"Trustee"), as Trustee under the Indenture dated as of
September 1, 1941 between the Company and The Chase National Bank
of the City of New York, as trustee, and The Citizens & Peoples
National Bank of Pensacola, as trustee (hereinafter commonly
referred to as the "Co-Trustee"), the Trustee and the Co-Trustee
being hereinafter commonly referred to as the "Trustees",
securing bonds issued and to be issued as provided therein
(hereinafter sometimes referred to as the "Indenture").
WHEREAS the Company and the Trustees have executed and
delivered the Indenture for the purpose of securing an issue of
bonds of the 1971 Series described therein and such additional
bonds as may from time to time be issued under and in accordance
with the terms of the Indenture, the aggregate principal amount
of bonds to be secured thereby being not limited, and the
Indenture fully describes and sets forth the property conveyed
thereby and is of record in the Office of the Clerk of the
Circuit, Superior or Chancery Court of each county in the States
of Florida, Georgia and Mississippi in which this Supplemental
Indenture is to be recorded and is on file at the principal
office of the Trustee, above referred to; and
WHEREAS the Company and the Trustees, or the Trustee, as the
case may be, have executed and delivered various supplemental
indentures for the purpose, among others, of further securing
said bonds and of setting forth the terms and provisions relating
to the bonds of other series described therein, which
supplemental indentures describe and set forth additional
property conveyed thereby and are also of record in the Offices
of the Clerks of the Circuit, Superior or Chancery Courts of some
or all of the counties in the States of Florida, Georgia and
Mississippi in which this Supplemental Indenture is to be
recorded and are on file at the principal office of the Trustee,
above referred to; and
WHEREAS effective December 9, 1993, the Company and the
Trustee have accepted the resignation of the Co-Trustee pursuant
to Section 16.20 of the Indenture; and
WHEREAS the Indenture provides for the issuance of bonds
thereunder in one or more series and the Company, by appropriate
corporate action in conformity with the terms of the Indenture,
has duly determined to create a series of bonds under the
Indenture to be designated as "6 7/8% Series due January 1, 2026"
(hereinafter sometimes referred to as the "Forty-fourth Series"),
each of which bonds shall also bear the descriptive title "First
Mortgage Bond", the bonds of such series to bear interest at the
annual rate designated in the title thereof and to mature January
1, 2026; and
WHEREAS each of the bonds of the Forty-fourth Series is to
be substantially in the following form, to-wit:
[FORM OF BOND OF THE FORTY-FOURTH SERIES]
[FACE]
GULF POWER COMPANY
First Mortgage Bond, 6 7/8% Series Due January 1, 2026
No. $
Gulf Power Company, a Maine corporation (hereinafter called
the "Company"), for value received, hereby promises to pay to
__________ or registered assigns, the principal sum of _________
Dollars on January 1, 2026, and to pay to the registered holder
hereof interest on said sum from the latest semi-annual interest
payment date to which interest has been paid on the bonds of this
series preceding the date hereof, unless the date hereof be an
interest payment date to which interest is being paid, in which
case from the date hereof, or unless the date hereof is prior to
July 1, 1996, in which case from January 1, 1996 (or, if this
bond is dated between the record date for any interest payment
date and such interest payment date, then from such interest
payment date, provided, however, that if the Company shall
default in payment of the interest due on such interest payment
date, then from the next preceding semi-annual interest payment
date to which interest has been paid on the bonds of this series,
or if such interest payment date is July 1, 1996, from January 1,
1996), at the rate per annum, until the principal hereof shall
have become due and payable, specified in the title of this bond,
payable on January 1 and July 1 in each year.
The provisions of this bond are continued on the reverse
hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
This bond shall not be valid or become obligatory for any
purpose unless and until it shall have been authenticated by the
execution by the Trustee or its successor in trust under the
Indenture of the certificate endorsed hereon.
IN WITNESS WHEREOF, Gulf Power Company has caused this bond
to be executed in its name by its President or one of its Vice
Presidents by his signature or a facsimile thereof, and its
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corporate seal or a facsimile thereof to be affixed hereto or
imprinted hereon and attested by its Secretary or one of its
Assistant Secretaries by his signature or a facsimile thereof.
Dated,
GULF POWER COMPANY,
By ____________________
President
Attest:
____________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
as Trustee,
By ____________________
Authorized Officer
[REVERSE]
GULF POWER COMPANY
FIRST MORTGAGE BOND, 6 7/8% SERIES DUE JANUARY 1, 2026
The interest payable on any January 1 or July 1 will,
subject to certain exceptions provided in the Indenture
hereinafter mentioned, be paid to the person in whose name this
bond is registered at the close of business on the record date,
which shall be the December 15 or June 15, as the case may be,
next preceding such interest payment date, or, if such December
15 or June 15 shall be a legal holiday or a day on which banking
institutions in the Borough of Manhattan, The City of New York,
are authorized to close, the next preceding day which shall not
be a legal holiday or a day on which such institutions are so
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authorized to close. The principal of and the premium, if any,
and interest on this bond shall be payable at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, designated for that purpose, in any coin or currency of
the United States of America which at the time of payment is
legal tender for public and private debts.
This bond is one of the bonds issued and to be issued from
time to time under and in accordance with and all secured by an
indenture of mortgage or deed of trust dated as of September 1,
1941, between the Company and The Chase National Bank of the City
of New York to which The Chase Manhattan Bank (now The Chase
Manhattan Bank (National Association)) is successor by merger
(hereinafter sometimes referred to as the "Trustee"), and The
Citizens & Peoples National Bank of Pensacola, as Trustees, and
indentures supplemental thereto, to which indenture and
indentures supplemental thereto (hereinafter referred to
collectively as the "Indenture") reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security and the rights, duties and immunities
thereunder of the Trustee and the rights of the holders of said
bonds and of the Trustee and of the Company in respect of such
security, and the limitations on such rights. By the terms of
the Indenture the bonds to be secured thereby are issuable in
series which may vary as to date, amount, date of maturity, rate
of interest and in other respects as in the Indenture provided.
Prior to January 1, 2006, the bonds of this series may not
be redeemed by the Company at its option or by operation of the
improvement fund or the replacement provisions of the Indenture
or by the use of proceeds of released property.
On or after January 1, 2006, upon notice given by mailing
the same, by first class mail postage prepaid, not less than
thirty nor more than forty-five days prior to the date fixed for
redemption to each registered holder of a bond to be redeemed (in
whole or in part) at the last address of such holder appearing on
the registry books, any or all of the bonds of this series may be
redeemed by the Company, at its option, or by operation of
various provisions of the Indenture, at any time and from time to
time by the payment of the principal amount thereof and accrued
interest thereon to the date fixed for redemption, together (a),
if redeemed otherwise than by the operation of the improvement
fund or the replacement provisions of the Indenture and otherwise
than by the use of proceeds of released property, as more fully
set forth in the Indenture, with a premium equal to a percentage
of the principal amount thereof determined as set forth in the
tabulation below under the heading "Regular Redemption Premium",
and (b), if redeemed by the operation of the improvement fund or
the replacement provisions of the Indenture or by the use of
proceeds of released property, as more fully set forth in the
Indenture, without premium:
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If redeemed during the twelve months' period
ending the last day of December,
Regular Redemption
Year Premium
2006 2.88%
2007 2.59%
2008 2.30%
2009 2.02%
2010 1.73%
2011 1.44%
2012 1.15%
2013 0.87%
2014 0.58%
2015 0.29%
and without premium if redeemed on or after January 1, 2016.
In case of certain defaults as specified in the Indenture,
the principal of this bond may be declared or may become due and
payable on the conditions, at the time, in the manner and with
the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this bond, or for any claim
based hereon, or otherwise in respect hereof or of the Indenture,
to or against any incorporator, stockholder, director or officer,
past, present or future, as such, of the Company, or of any
predecessor or successor company, either directly or through the
Company, or such predecessor or successor company, under any
constitution or statute or rule of law, or by the enforcement of
any assessment or penalty, or otherwise, all such liability of
incorporators, stockholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Indenture.
Every bond of this series shall be dated as of the date of
authentication.
This bond is transferable by the registered owner hereof, in
person or by attorney duly authorized, at the office or agency of
the Trustee, in the Borough of Manhattan, The City of New York,
but only in the manner prescribed in the Indenture, upon the
surrender and cancellation of this bond and the payment of
charges for transfer, and upon any such transfer a new bond or
bonds of the same series and maturity date and for the same
aggregate principal amount, in authorized denominations, will be
issued to the transferee in exchange herefor. The Company and
the Trustee may deem and treat the person in whose name this bond
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is registered as the absolute owner for the purpose of receiving
payment and for all other purposes. Bonds of this series shall
be exchangeable for bonds of other authorized denominations
having the same aggregate principal amount, in the manner and
upon the conditions prescribed in the Indenture. However,
notwithstanding the provisions of the Indenture, no charge shall
be made upon any transfer or exchange of bonds of this series
other than for any tax or taxes or other governmental charge
required to be paid by the Company.
AND WHEREAS all acts and things necessary to make the bonds,
when authenticated by the Trustee and issued as in the Indenture,
as heretofore supplemented and amended, and this Supplemental
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture valid,
binding and legal instruments for the security thereof, have been
done and performed, and the creation, execution and delivery of
the Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture and the creation, execution and issue of
bonds subject to the terms hereof and of the Indenture, have in
all respects been duly authorized.
NOW, THEREFORE, in consideration of the premises, and of the
acceptance and purchase by the holders thereof of the bonds
issued and to be issued under the Indenture, and of the sum of
One Dollar duly paid by the Trustee to the Company, and of other
good and valuable considerations, the receipt whereof is hereby
acknowledged, and for the purpose of securing the due and
punctual payment of the principal of and premium, if any, and
interest on the bonds now outstanding under the Indenture, or the
Indenture as supplemented and amended, and the $30,000,000
principal amount of bonds of the Forty-fourth Series proposed to
be initially issued and all other bonds which shall be issued
under the Indenture, or the Indenture as supplemented and
amended, and for the purpose of securing the faithful performance
and observance of all covenants and conditions therein and in any
indenture supplemental thereto set forth, the Company has given,
granted, bargained, sold, transferred, assigned, hypothecated,
pledged, mortgaged, warranted, aliened and conveyed and by these
presents does give, grant, bargain, sell, transfer, assign,
hypothecate, pledge, mortgage, warrant, alien and convey unto The
Chase Manhattan Bank (National Association), as Trustee, as
provided in the Indenture, and its successor or successors in the
trust thereby and hereby created and to its or their assigns
forever, all the right, title and interest of the Company in and
to the property described in Exhibit "A" attached hereto and by
this reference made a part hereof, together (subject to the
provisions of Article X of the Indenture) with the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and does hereby confirm that the Company will not cause or
consent to a partition, either voluntary or through legal
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proceedings, of property, whether herein described or heretofore
or hereafter acquired, in which its ownership shall be as a
tenant in common except as permitted by and in conformity with
the provisions of the Indenture and particularly of Article X
thereof.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in any wise appertaining to the
premises, property, franchises and rights, or any thereof,
referred to in the foregoing granting clauses, with the reversion
and reversions, remainder and remainders and (subject to the
provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now
has or may hereafter acquire in and to the aforesaid premises,
property, franchises and rights and every part and parcel
thereof.
TO HAVE AND TO HOLD all said premises, property, franchises
and rights hereby conveyed, assigned, pledged or mortgaged, or
intended so to be, unto the Trustee, its successor or successors
in trust, and its or their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the
equal and proportionate benefit and security of the holders of
all bonds and interest coupons now or hereafter issued under the
Indenture, as supplemented and amended, pursuant to the
provisions thereof, and for the enforcement of the payment of
said bonds and coupons when payable and the performance of and
compliance with the covenants and conditions of the Indenture, as
supplemented and amended, without any preference, distinction or
priority as to lien or otherwise of any bond or bonds over others
by reason of the difference in time of the actual issue, sale or
negotiation thereof or for any other reason whatsoever, except as
otherwise expressly provided in the Indenture, as supplemented
and amended; and so that each and every bond now or hereafter
issued thereunder shall have the same lien, and so that the
principal of and premium, if any, and interest on every such bond
shall, subject to the terms of the Indenture, as supplemented and
amended, be equally and proportionately secured thereby and
hereby, as if it had been made, executed, delivered, sold and
negotiated simultaneously with the execution and delivery of the
Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and
secured thereunder and hereunder are to be issued, authenticated
and delivered, and all said premises, property, franchises and
rights hereby and by the Indenture, as supplemented and amended,
conveyed, assigned, pledged or mortgaged, or intended so to be
(including all the right, title and interest of the Company in
and to any and all premises, property, franchises and rights of
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every kind and description, real, personal and mixed, tangible
and intangible, thereafter acquired by the Company and whether or
not specifically described in the Indenture or in any indenture
supplemental thereto, except any therein expressly excepted), are
to be dealt with and disposed of, under, upon and subject to the
terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes in the Indenture, as supplemented and amended,
expressed, and it is hereby agreed as follows:
SECTION 1. There is hereby created a series of bonds
designated as hereinabove set forth (said bonds being sometimes
herein referred to as the "bonds of the Forty-fourth Series") and
the form thereof shall be substantially as hereinabove set forth.
Bonds of the Forty-fourth Series shall mature on the date
specified in the form thereof hereinabove set forth, and the
definitive bonds of such series shall be issued only as
registered bonds without coupons. Bonds of the Forty-fourth
Series shall be in such denominations as the Board of Directors
shall approve, and execution and delivery thereof to the Trustee
for authentication shall be conclusive evidence of such approval.
The serial numbers of bonds of the Forty-fourth Series shall be
such as may be approved by any officer of the Company, the
execution thereof by any such officer to be conclusive evidence
of such approval.
Bonds of the Forty-fourth Series, until the principal
thereof shall have become due and payable, shall bear interest at
the annual rate designated in the title thereof, payable
semi-annually on January 1 and July 1 in each year.
The principal of and premium, if any, and the interest on
the bonds of the Forty-fourth Series shall be payable in any coin
or currency of the United States of America which at the time of
payment is legal tender for public and private debts, at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, designated for that purpose.
Bonds of the Forty-fourth Series may be transferred at the
office or agency of the Trustee, in the Borough of Manhattan, The
City of New York. Bonds of the Forty-fourth Series shall be
exchangeable for other bonds of the same series, in the manner
and upon the conditions prescribed in the Indenture, upon the
surrender of such bonds at said office or agency of the Trustee.
However, notwithstanding the provisions of Section 2.05 of the
Indenture, no charge shall be made upon any transfer or exchange
of bonds of said series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
The person in whose name any bond of the Forty-fourth Series
is registered at the close of business on any record date (as
hereinbelow defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
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interest payment date notwithstanding the cancellation of such
bond upon any transfer or exchange thereof subsequent to the
record date and prior to such interest payment date, except if
and to the extent the Company shall default in the payment of the
interest due on such interest payment date, in which case such
defaulted interest shall be paid to the person in whose name such
bond (or any bond or bonds issued, directly or after intermediate
transactions, upon transfer or exchange or in substitution
thereof) is registered on a subsequent record date for such
payment established as hereinafter provided. A subsequent record
date may be established by the Company by notice mailed to the
holders of bonds not less than ten days preceding such record
date, which record date shall be not less than five nor more than
thirty days prior to the subsequent interest payment date. The
term "record date" as used in this Section with respect to any
regular interest payment date shall mean the December 15 or June
15, as the case may be, next preceding such interest payment
date, or, if such December 15 or June 15 shall be a legal holiday
or a day on which banking institutions in the Borough of
Manhattan, The City of New York, are authorized by law to close,
the next preceding day which shall not be a legal holiday or a
day on which such institutions are so authorized to close.
Bonds of the Forty-fourth Series shall be dated as of the
date of authentication and shall bear interest from the latest
semi-annual interest payment date to which interest has been paid
on the bonds of such series preceding the date of authentication,
unless such date of authentication be an interest payment date to
which interest is being paid on the bonds of such series, in
which case they shall bear interest from such date of
authentication, provided that bonds authenticated prior to the
first interest payment date shall bear interest from a date six
months prior to such date. However, so long as there is no
existing default in the payment of interest on such bonds, the
holder of any bond authenticated by the Trustee between the
record date for any interest payment date and such interest
payment date shall not be entitled to the payment of the interest
due on such interest payment date and shall have no claim against
the Company with respect thereto; provided, further, that if and
to the extent the Company shall default in the payment of the
interest due on such interest payment date, then any such bond
shall bear interest from the January 1 or July 1, as the case may
be, next preceding the date of such bond, to which interest has
been paid or, if the Company shall be in default with respect to
the interest due on July 1, 1996, then from January 1, 1996.
Prior to January 1, 2006, the bonds of the Forty-fourth
Series shall not be redeemable at the option of the Company, or
by the operation of Section 4 of the Supplemental Indenture dated
as of October 1, 1964 or of Section 2 of this Supplemental
Indenture or of the improvement fund provisions of any
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supplemental indenture other than this Supplemental Indenture or
by the use of proceeds of released property.
On or after January 1, 2006, any or all of the bonds of the
Forty-fourth Series shall be redeemable at the option of the
Company, or by operation of various provisions of the Indenture,
as supplemented and amended, at any time and from time to time,
prior to maturity, upon notice given by mailing the same, by
first class mail postage prepaid, not less than thirty nor more
than forty-five days prior to the date fixed for redemption to
each registered holder of a bond of the Forty-fourth Series to be
redeemed (in whole or in part) at the last address of such holder
appearing on the registry books, at the principal amount thereof
and accrued interest thereon to the date fixed for redemption,
together (a), if redeemed otherwise than by the operation of
Section 4 of the Supplemental Indenture dated as of October 1,
1964 or of Section 2 of this Supplemental Indenture or of the
improvement fund provisions of any supplemental indenture other
than this Supplemental Indenture and otherwise than by the use of
proceeds of released property, with a regular redemption premium
equal to a percentage of the principal amount thereof determined
as set forth in the tabulation appearing in the form of the bonds
of the Forty-fourth Series hereinbefore set forth, and (b), if
redeemed by the operation of Section 4 of the Supplemental
Indenture dated as of October 1, 1964 or of Section 2 of this
Supplemental Indenture or of the improvement fund provisions of
any supplemental indenture other than this Supplemental Indenture
or by the use of proceeds of released property, either (i) with a
special redemption premium, if any, equal to a percentage of the
principal amount thereof determined as set forth in the
tabulation appearing in the form of the bonds of the Forty-fourth
Series hereinbefore set forth or (ii), if no special redemption
premium is so set forth, then without premium.
SECTION 2. The Company covenants that, so long as any bonds
of the Forty-fourth Series shall be outstanding under the
Indenture, it will, on or before June 1 in each year commencing
with June 1, 1997:
(a) deposit with the Trustee subject to the
provisions of this Section cash and/or bonds of any
series authenticated under the Indenture then
outstanding (taken at their principal amount) in an
amount equal to the "improvement fund requirement"
(which term, as used in this Section, shall mean for
any year an amount equal to one per centum (1%) of the
aggregate principal amount of bonds of the Forty-fourth
Series authenticated and delivered by the Trustee
pursuant to the provisions of Articles IV, V and VI of
the Indenture, prior to January 1 of that year, after
deducting from such aggregate principal amount the
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principal amount of bonds of the Forty-fourth Series
which, prior to January 1 of that year, have been
deposited with the Trustee for cancellation as the
basis for the release of property or for the withdrawal
of cash representing proceeds of released property or
have been purchased or redeemed by the use of proceeds
of released property); or
(b) to the extent that it does not so deposit
cash and/or bonds, certify to the Trustee unfunded net
property additions in an amount equal to one hundred
sixty-six and two-thirds per centum (166 2/3%) of the
portion of the improvement fund requirement not so
satisfied.
The term "improvement fund certificate", as used in this
Section, shall mean an accountant's certificate filed by the
Company with the Trustee pursuant to this Section. Such
certificate may be a separate certificate or it may be combined
with an improvement fund certificate or certificates filed
pursuant to the improvement fund provisions of the Indenture or
of any other indenture or indentures supplemental thereto.
On or before the first day of June in each year, beginning
June 1, 1997, so long as any bonds of the Forty-fourth Series are
outstanding under the Indenture, the Company shall deliver to the
Trustee an improvement fund certificate showing the improvement
fund requirement for that year, the amount of cash, if any, and
the principal amount of bonds authenticated under the Indenture
then outstanding, if any, then to be deposited by the Company
with the Trustee and, if the Company elects to satisfy the
improvement fund requirement for that year in whole or in part by
the certification of unfunded net property additions, the amount,
if any, of unfunded net property additions to be certified. The
Company shall, concurrently with the delivery to the Trustee of
such certificate, deposit with the Trustee the amount of cash, if
any, and the principal amount of bonds, if any, shown in such
certificate.
No property additions shall be certified in any improvement
fund certificate pursuant to the provisions of this Section
unless there shall be delivered to the Trustee with such
certificate the applicable certificates, opinion of counsel,
instruments and cash, if any, required by paragraphs (3), (4),
(5), (7), (9) and (10) of Section 4.05 of the Indenture showing
that the Company has unfunded net property additions equal to the
amount so certified.
The Trustee shall hold any cash deposited with it under the
provisions of this Section as a part of the mortgaged and pledged
property until paid out as hereinafter provided. Any cash
deposited with the Trustee under the provisions of this Section
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may, upon receipt by the Trustee of the written order of the
Company signed by its President or a Vice President, of a
treasurer's certificate such as is described in paragraph (2) of
Section 4.05 of the Indenture and of an opinion of counsel,
(1) be withdrawn, used or applied by the Company in
accordance with the provisions of paragraph (2), (3) or (4)
of Section 10.05 of the Indenture, except that any premium
required to be paid to purchase or redeem bonds shall be
paid out of funds held by the Trustee under this Section and
the Company shall not be required to furnish the Trustee
with additional funds for such purpose or to reimburse the
Trustee or the improvement fund for moneys so paid out.
Interest and expenses in connection with purchases or
redemptions pursuant to this Section shall be dealt with as
provided in Section 9.05 of the Indenture; or
(2) be withdrawn by the Company to the extent of sixty
per centum (60%) of the amount of unfunded net property
additions certified to the Trustee for such purpose, but
only upon receipt by the Trustee of the applicable
certificates, opinion of counsel, instruments and cash, if
any, required by paragraphs (3), (4), (5), (7), (9) and (10)
of Section 4.05 of the Indenture, showing that the Company
has unfunded net property additions equal to the amount so
certified.
Bonds deposited with the Trustee pursuant to this Section,
or purchased or redeemed by the use of cash deposited pursuant to
this Section, shall be cancelled and shall not be thereafter made
the basis for the authentication of bonds, the withdrawal, use or
application of cash, or the release of property, under any of the
provisions of the Indenture, or thereafter used to satisfy the
requirements of this Section or of any other improvement fund
provided for in the Indenture or in any indenture supplemental
thereto or to satisfy any replacement deficit pursuant to Section
4 of the Supplemental Indenture dated as of October 1, 1964.
To the extent that unfunded net property additions are
certified to the Trustee to satisfy the improvement fund
requirement for any year in whole or in part or as a basis for
the withdrawal of cash deposited with the Trustee under the
provisions of this Section, the amount of such unfunded net
property additions shall thereafter be deducted in computing the
amount of unfunded net property additions under Section 1.11 of
the Indenture and in computing gross property additions under
Section 7.07 of the Indenture.
SECTION 3. The Company covenants that the provisions of
Section 4 of the Supplemental Indenture dated as of October 1,
1964, which are to remain in effect so long as any bonds of the
Tenth Series shall be outstanding under the Indenture, shall
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remain in full force and effect so long as any bonds of the
Forty-fourth Series shall be outstanding under the Indenture.
The Company covenants that it will not, in any calendar year
subsequent to 2005, redeem any bonds of the Forty-fourth Series
through the operation of Section 4 of the Supplemental Indenture
dated as of October 1, 1964 or this Section in a principal amount
that would exceed one per centum (1%) of the aggregate principal
amount of bonds of the Forty-fourth Series initially
authenticated and delivered under this Supplemental Indenture.
SECTION 4. The Company covenants that, so long as any bonds
of the Forty-fourth Series shall be outstanding under the
Indenture, it will not declare or pay any dividends, or make any
other distributions (except (a) dividends payable or
distributions made in shares of common stock of the Company and
(b) dividends payable in cash in cases where, concurrently with
the payment of the dividend, an amount in cash equal to the
dividend is received by the Company as a capital contribution or
as the proceeds of the issue and sale of shares of its common
stock), on or in respect of its common stock, or purchase or
otherwise acquire for a consideration any shares of its common
stock, if the aggregate of such dividends, distributions and
consideration for purchase or other acquisition of shares of its
common stock after December 31, 1995, shall exceed
(i) the earned surplus of the Company accumulated
after December 31, 1995 (determined in accordance with
generally accepted accounting principles and without giving
effect to charges to earned surplus on account of such
dividends, distributions or acquisitions or on account of
the disposition of any amounts which may then be classified
by the Company on its books as amounts in excess of the
original cost of utility plant or to charges or credits to
earned surplus on account of items inherent in the balance
sheet at December 31, 1995), plus
(ii) the earned surplus of the Company accumulated
prior to January 1, 1996 in an amount not exceeding
$55,500,000, plus
(iii) such additional amount as shall be authorized or
approved, upon application by the Company, by the Securities
and Exchange Commission, or by any successor commission
thereto, under the Public Utility Holding Company Act of
1935, as amended.
For the purposes of this Section, in determining the earned
surplus of the Company accumulated after December 31, 1995, there
shall be deducted the dividends accruing subsequent to December
31, 1995 on preferred stock of the Company and the total amount,
if any, by which the charges to income or earned surplus since
-13-
December 31, 1995 as provision for depreciation of the mortgaged
and pledged property (other than specially classified property)
shall have been less than the sum of the amounts equal to the
product of the applicable percentage (as defined in Section 4 of
the Supplemental Indenture dated as of October 1, 1964) and the
mathematical average of the amounts of depreciable property (as
defined in said Section 4) at the opening of business on the
first day and at the close of business on the last day of each
calendar year (and, proportionately, of each period of months
which is less than a calendar year) subsequent to December 31,
1995 included in the period for which earned surplus is being
determined. The term "consideration", as used in this Section,
shall mean the cash or fair value if the consideration be other
than cash, and the term "provision for depreciation", as used in
this Section, shall not be deemed to include provision for the
amortization of any amounts classified by the Company on its
books as amounts in excess of the original cost of utility plant.
SECTION 5. As supplemented by this Supplemental Indenture,
the Indenture, as heretofore supplemented and amended, is in all
respects ratified and confirmed and the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument.
SECTION 6. Nothing in this Supplemental Indenture contained
shall, or shall be construed to, confer upon any person other
than a holder of bonds issued under the Indenture, the Company
and the Trustee any right or interest to avail himself of any
benefit under any provision of the Indenture, as heretofore
supplemented and amended, or of this Supplemental Indenture.
SECTION 7. The Trustee assumes no responsibility for or in
respect of the validity or sufficiency of this Supplemental
Indenture or the due execution hereof by the Company or for or in
respect of the recitals and statements contained herein, all of
which recitals and statements are made solely by the Company.
SECTION 8. This Supplemental Indenture may be executed in
several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, said Gulf Power Company has caused this
Supplemental Indenture to be executed in its corporate name by
its President or one of its Vice Presidents and its corporate
seal to be hereunto affixed and to be attested by its Secretary
or one of its Assistant Secretaries, and said The Chase Manhattan
Bank (National Association), as Trustee, has caused this
Supplemental Indenture to be executed in its corporate name by
one of its Vice Presidents and its corporate seal to be hereunto
affixed and to be attested by one of its Assistant Secretaries or
one of its Trust Officers, in several counterparts, all as of the
day and year first above written.
GULF POWER COMPANY
[SEAL] By:___________________________
X. X. Xxxxxxxxxx
Vice President
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attest:
__________________________
Xxxxxx X. Xxxx, Secretary
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Signed, sealed and delivered
this 22nd day of January, 1996
by GULF POWER COMPANY,
in the County of Escambia,
State of Florida, in the
presence of:
__________________________
Xxxxx Xxxxxx
__________________________
Xxxxxxx Xxxxxxxx
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By:___________________________
Xxxxxxx Xxxxxx
Vice President
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attest:
__________________________
Xxxxx Xxxxxxxx
Corporate Trust Xxxxxxx
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Signed, sealed and delivered
this 23rd day of January 1996
by THE CHASE MANHATTAN BANK
(National Association) in
the presence of:
__________________________
Xxxxxxx X. Xxxx
__________________________
Xxxxx X. Xxxxxxxx
STATE OF FLORIDA )
)
COUNTY OF ESCAMBIA )
The foregoing instrument was acknowledged before me this
22nd day of January, 1996, by X. X. Xxxxxxxxxx, Vice President of
GULF POWER COMPANY, a Maine corporation, on behalf of the
corporation. He is personally known to me and did take an oath.
___________________________
Xxxxxxx Xxxxxxxxxxxx
Notary Public - State of Florida
County of Escambia
[NOTARIAL SEAL] My Commission Expires: 5/18/99
Commission No.: CC 000000
XXXXX XX XXX XXXX )
)
COUNTY OF KINGS )
The foregoing instrument was acknowledged before me this
23rd day of January, 1996, by Xxxxxxx Xxxxxx, a Vice President
of THE CHASE MANHATTAN BANK (National Association), a United
States corporation, on behalf of the corporation. She is
personally known to me and did take an oath.
_____________________________
Xxxxxxxx X. Xxxxx
Notary Public
State of New York
[NOTARIAL SEAL] No. 00-0000000
Qualified in Kings County
Commission Expires 4/22/97
