Exhibit B
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
and
GULF POWER COMPANY
---------------
LOAN AGREEMENT
---------------
Dated as of September 1, 2002
Relating to
$42,000,000
Pollution Control Revenue Bonds
(Gulf Power Company Plant ▇▇▇▇▇▇▇ Project)
First Series 2002
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. The Company to Maintain Its Corporate
Existence; Conditions Under Which
Exceptions Permitted 4
SECTION 4.4. Annual Statement 4
SECTION 4.5. Further Assurances and Corrective
Instruments 5
SECTION 4.6. Maintenance of Project by Company 5
SECTION 4.7. Redemption or Purchase of Bonds 5
SECTION 4.8. Non-Arbitrage Covenant 5
SECTION 4.9. Company's Option to determine Interest
Rate Mode; Appointment of Remarketing Agent 6
ARTICLE V EVENTS OF DEFAULT AND REMEDIES 6
SECTION 5.1. Events of Default 6
SECTION 5.2. Remedies on Default 7
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 8
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 9
LOAN AGREEMENT dated as of September 1, 2002 between the DEVELOPMENT
AUTHORITY OF MONROE COUNTY, a public body corporate and politic duly organized
and existing under the Constitution and laws of the State of Georgia (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 Georgia or any
political subdivision thereof but shall be payable solely out of the revenues
and proceeds derived from this Agreement and the Note (as hereinafter defined)
and the sale of the Bonds referred to herein):
ARTICLE I
DEFINITIONS
"Bondholder", "Bonds", "Business Day", "Government Obligations",
"Refunded Bonds" and "Trustee" have the same meanings given and assigned to such
words in Article I of the Indenture (as hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
"corporation" includes corporations, partnerships, limited
partnerships, limited liability partnerships, limited liability companies,
associations, companies and business trusts.
"Event of Default" means any of the occurrences enumerated in Section
5.1 of this Agreement.
"Indenture" means the Trust Indenture, dated as of September 1, 2002,
relating to Pollution Control Revenue Bonds (Gulf Power Company Plant ▇▇▇▇▇▇▇
Project), First Series 2002, between the Issuer and The Bank of New York Trust
Company of Florida, N.A., as Trustee, pursuant to which the Bonds are authorized
to be issued, and including any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the Company of the
proceeds (which shall be deemed to include the underwriting discounts, if any,
and original issue discount, if any) of the sale of the Bonds, exclusive of any
accrued interest paid by the initial purchasers of the Bonds upon the delivery
thereof.
"Note" means the non-negotiable promissory note of the Company issued
pursuant to Section 3.2 hereof, in the form set forth in Exhibit A hereto.
"Original Agreement" means, collectively, (i) the Loan Agreement, dated
as of December 1, 1984, between the Issuer and the Company delivered in
connection with the issuance of the $22,000,000 Development Authority of Monroe
County Pollution Control Revenue Bonds (Gulf Power Company Plant ▇▇▇▇▇▇▇
Project), First Series 1984; and (ii) the Loan Agreement, dated as of December
1, 1984, between the Issuer and the Company, delivered in connection with the
issuance of the $20,000,000 Development Authority of Monroe County Pollution
Control Revenue Bonds (Gulf Power Company Plant ▇▇▇▇▇▇▇ Project), First Series
1984.
"Plans" and "Project" mean the "Plans" and "Project" as respectively
defined in Article I of the Original Agreements.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The Company
represents that it has caused the acquisition, construction, installation and
equipping of the Project to be completed substantially in accordance with the
Plans.
SECTION 2.2. Issuance of the Bonds. In order to provide funds for the
purpose set forth in Section 3.1 hereof, the Issuer agrees that it will issue
and deliver the Bonds to the purchasers thereof at a price of par and apply and
deposit the proceeds thereof in accordance with the terms of the Indenture and
Section 3.1 hereof. The Indenture shall be satisfactory in form and substance to
the Company and shall provide the manner in which, and the purposes for which,
proceeds of Bonds may be used and invested.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the Loan
to the Company in order to refund the Refunded Bonds. The Company hereby agrees
to cause the proceeds of the Bonds (other than accrued interest) to be applied
exclusively to such purpose and to cause the refunding of the Refunded Bonds to
be effected within 90 days after the date of initial issuance of the Bonds.
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 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, and (ii) any expenses in connection
with any redemption of the 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 Georgia 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 so long as such action shall not violate the agreements on the part
of the Company contained in the preceding sentence, but in no event shall the
Company be entitled to any diminution of the amounts payable under the Note and
as provided in Section 3.2 hereof.
SECTION 3.4. Assignment and Pledge of Payments and Rights Under the
Note and the Agreement. The Issuer shall assign to the Trustee as security under
the Indenture all rights, title and interests of the Issuer in and to (i) the
Note and all payments thereunder and (ii) this Agreement and all moneys
receivable hereunder (except for payments under Sections 4.2 and 5.3 hereof).
The Company assents to such assignment and hereby agrees that, as to the
Trustee, its obligations to make such payments shall be absolute and shall not
be subject to any defense or any right of set-off, counterclaim or recoupment
arising out of any breach by the Issuer or the Trustee of any obligation to the
Company, whether hereunder or otherwise, or out of any indebtedness or liability
at any time owing to the Company by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer hereby acknowledges that it
shall have no rights to the use or possession of the Project. The Issuer hereby
further acknowledges that the Project will not constitute any part of the
security for the Bonds.
SECTION 4.2. Indemnity Against Claims. The Company will pay and
discharge and will indemnify and hold harmless the Issuer 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, including the reasonable fees
and expenses of counsel. If any such lien or charge is sought to be imposed upon
payments, or any such taxes, assessments, impositions or other charges are
sought to be imposed, or any such liability, damages, costs and expenses are
sought to be imposed, the Issuer will give prompt notice to the Company, and the
Company shall have the sole right and duty to assume, and will assume, the
defense thereof, with full power to litigate, compromise or settle the same in
its sole discretion.
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees that during the
term of this Agreement it will maintain its corporate existence and
qualification to do business in Georgia, will not dissolve or otherwise dispose
of all or substantially all of its assets and will not consolidate with or merge
into another corporation or permit one or more other corporations to consolidate
with or merge into it; provided, that the Company may, without violating the
agreements contained in this Section 4.3, consolidate with or merge into another
domestic corporation (i.e., a corporation incorporated and existing under the
laws of one of the states of the United States of America or under the laws of
the United States of America) or permit one or more other corporations to
consolidate with or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an entirety and
thereafter dissolve, provided that, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may be, the
surviving, resulting or transferee corporation assumes, accepts and agrees in
writing to pay and perform all of the obligations of the Company herein and
under the Note and is a Georgia corporation or is qualified to do business in
Georgia as a foreign corporation and that such consolidation or merger does not
result in the loss of the exclusion from gross income for federal income tax
purposes of interest on the outstanding Bonds.
SECTION 4.4. Annual Statement. The Company agrees to have an annual
audit made by its regular independent public accountants and within 180 days
after the close of each fiscal year to furnish the Trustee and any Bondholder
who may so request a balance sheet and statement of income and surplus showing
the financial condition of the Company and its consolidated subsidiaries, if
any, at the close of such fiscal year and the results of operations of the
Company and its consolidated subsidiaries, if any, for such fiscal year,
accompanied by a certificate or opinion of said accountants. The requirements of
this Section 4.4 may be satisfied by the submission to the Trustee and each
Bondholder who may request such information of the Company's annual report to
its shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Agreement.
SECTION 4.6. Maintenance of Project by Company. The Company agrees that
during the term of this Agreement it will pay all costs of operating,
maintaining and repairing the Project; provided, however, that the Company shall
not be under any obligation to renew, repair or replace any inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary portion of the
Project.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture for the
redemption or purchase (other than a purchase pursuant to tenders as provided in
the form of Bonds as provided in Section 3.07 of the Indenture) of Bonds upon
receipt, not less than ten days prior to the day on which the Trustee is
required to give notice (if any) thereof pursuant to the Indenture, by the
Issuer and the Trustee from the Company of a written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase; and
(c) in the case of a redemption of Bonds, directions to
mail a notice of redemption.
In the case of a purchase of Bonds, the written notice to the Trustee
shall, if available moneys on deposit with the Trustee are insufficient to
purchase the principal amount of Bonds specified in (a) above, be accompanied by
a deposit with the Trustee of cash or Government Obligations sufficient,
together with other available moneys on deposit with the Trustee, to make the
directed purchase of Bonds.
SECTION 4.8. Non-Arbitrage Covenant. The Company and the Issuer each
covenants that it shall take no action, nor shall the Company direct the taking
of any action or the making of any investment or use of the proceeds of the
Bonds or any other moneys, which would cause the Bonds to be treated as
"arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code
of 1986, as amended, and the proposed, temporary or final regulations thereunder
as such may be applicable or proposed to be applicable to the Bonds at the time
of such action, investment or use.
Without limiting the generality of the foregoing, the Company covenants
and agrees to comply with the requirements of Section 148(f) of the Internal
Revenue Code of 1986, as amended, and any proposed, temporary or final
regulations thereunder as may be applicable to the Bonds or the proceeds derived
from the sale of the Bonds or any other moneys.
SECTION 4.9. Company's Option to Determine Interest Rate Mode;
Appointment of Remarketing Agent. The Issuer and the Company agree that the
Company shall have the option to change the interest rate determination method
for the Bonds in the manner provided in the Indenture, particularly Section
2.02. The Company agrees, in connection with any change in the interest rate
determination method, to provide for the appointment of a Remarketing Agent as
provided in Section 9.15 of the Indenture if no Remarketing Agent has been
appointed and is serving as such under the Indenture and for the appointment of
an Auction Agent and one or more Broker-Dealers, as appropriate.
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 amounts
required to be paid pursuant to this Agreement.
(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be observed or
performed hereunder, other than as referred to in subsection
(a) of this Section 5.1, for a period of 90 days after written
notice, specifying such failure and requesting that it be
remedied, is given to the Company by the Issuer or the
Trustee, unless the Issuer and the Trustee shall agree in
writing to an extension of such period prior to its
expiration; provided, however, if the failure stated in the
notice cannot be corrected within the applicable period, the
Issuer and the Trustee will not unreasonably withhold their
consent to an extension of such period if corrective action is
instituted by the Company within the applicable period and
diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Company,
except as permitted by Section 4.3 hereof, or the commencement
by the Company of any case or proceeding seeking to have an
order for relief entered on its behalf as a debtor or to
adjudicate it as bankrupt or insolvent or seeking
reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any
other relief under any bankruptcy, insolvency, reorganization
or other similar law of the United States or any state, or
adjudication of the Company as bankrupt, or an assignment by
the Company for the benefit of its creditors, or the entry by
the Company into an agreement of composition with its
creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any
proceeding for its reorganization instituted under the
provisions of Title 11 of the United States Code, as amended,
or under any similar statutory provision which may hereafter
be enacted.
The foregoing provisions of Section 5.1(b) are subject to the
limitation that, if by reason of force majeure the Company is unable in whole or
in part to carry out its agreements herein contained other than those set forth
in Sections 4.3 and 4.8 hereof, an Event of Default shall not be deemed to have
occurred during the continuance of such inability. The term "force majeure" as
used herein shall mean the following: acts of God; strikes; lockouts or other
industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States or of the State of Georgia 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 the paying agents and
all other amounts required to be paid under the Indenture shall have been paid,
to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should breach any of the provisions of the Note or this
Agreement and the Issuer should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay to the Issuer
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in the Note or in this Agreement should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall remain in
full force and effect from the date hereof until such time as all of the
outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of the Indenture, whichever shall first occur,
and the fees and expenses of the Trustee and any paying agents and all other
amounts payable by the Company under this Agreement and the Note shall have been
paid.
SECTION 6.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid, addressed as
follows: if to the Issuer, c/o Board of Commissioners of Monroe County, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Company and via United
States mail or facsimile, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Treasurer, with copies to Southern Company Services, Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance
Department; if to the Company and via hand delivery, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, with copies to Southern Company
Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department; and if to the Trustee, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department.
A duplicate copy of each notice, certificate or other communication given
hereunder by either the Issuer or the Company to the other shall also be given
to the Trustee. The Issuer, the Company and the Trustee may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates or other communications shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 6.5. Amendments. This Agreement may not be effectively
terminated except in accordance with the provisions hereof and may not be
effectively amended except by a written agreement in accordance with Article XI
of the Indenture and signed by the parties hereto.
SECTION 6.6. Execution in Counterparts. This Agreement may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
SECTION 6.7. Applicable Law. This Agreement and the Note shall be
governed by and construed in accordance with the laws of the State of Georgia.
SECTION 6.8. Captions. The captions or headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or sections of this Agreement.
SECTION 6.9. Other Financing. Notwithstanding anything in this
Agreement to the contrary, the Issuer and the Company may hereafter enter into
agreements to provide for the financing or refinancing of costs of the Project
or any portion thereof.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
[SEAL]
By:
--------------------
Chairman
ATTEST:
---------------------------
Secretary
GULF POWER COMPANY
[SEAL]
By:
-------------------------------------------
Vice President and Chief Financial Officer
ATTEST:
---------------------------
Assistant Secretary
EXHIBIT A
GULF POWER COMPANY
PROMISSORY NOTE
$42,000,000 September 26, 2002
GULF POWER COMPANY ("Gulf"), a corporation organized and existing under
the laws of the State of Georgia, acknowledges itself indebted and for value
received hereby promises to pay to the order of the Development Authority of
Monroe County (the "Authority"), and its successors and assigns, the principal
sum of FORTY-TWO MILLION DOLLARS ($42,000,000) together with interest on the
unpaid principal balance thereof from the date hereof until Gulf's obligations
with respect to the payment of such sum shall be discharged at the rate or rates
borne by the Bonds referred to below. As additional interest hereon there shall
be payable, and Gulf promises to pay when due, amounts which shall equal the
premium, if any, due on such Bonds in connection with the redemption thereof.
Gulf further promises to pay the purchase price of such Bonds as hereinbelow
provided.
This Note is issued to evidence the Loan (as defined in the Agreement
hereinafter referred to) of the Authority to Gulf and the obligation of Gulf to
repay the same and shall be governed by and be payable in accordance with the
terms and conditions of a loan agreement (the "Agreement") between the Authority
and Gulf dated as of September 1, 2002, pursuant to which the Authority has
loaned to Gulf the proceeds of the sale of the Authority's $42,000,000 of
Pollution Control Revenue Bonds (Gulf Power Company Plant ▇▇▇▇▇▇▇ Project),
First Series 2002 (the "Bonds"). This Note (together with the Agreement) has
been assigned to The Bank of New York Trust Company of Florida, N.A. (the
"Trustee"), acting pursuant to a trust indenture dated as of September 1, 2002
(the "Indenture") between the Authority 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, 2037. 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 Authority, in funds which will
be immediately available on the day payment is due, amounts which, and at or
before times which, shall correspond to the payments with respect to the
principal of and premium, if any, and interest on the Bonds whenever and in
whatever manner the same shall become due, whether at stated maturity, upon
redemption or declaration or otherwise, and the purchase price of Bonds required
to be purchased under the Indenture. If (i) on the date any payments on the
Bonds are due there are any available moneys on deposit with the Trustee which
are not being held for the payment of Bonds due and payable but which have not
been presented for payment, or (ii) on any date on which Bonds are required to
be purchased pursuant to the Bonds or Article III of the Indenture, there are
available moneys on deposit with the Trustee held for the payment of the
purchase price which are not being held for the payment of Bonds which have not
been presented for payment, then, in each case, such moneys shall be credited
against the payment then due hereunder, first in respect of interest and then,
to the extent of remaining moneys, in respect of principal. Upon the occurrence
of an Event of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable as provided in
the Agreement.
Neither the officers of Gulf nor any persons executing this Note shall
be liable personally or shall be subject to any personal liability or
accountability by reason of the issuance hereof.
IN WITNESS WHEREOF, Gulf Power Company has caused this Note to be
executed in its corporate name and on its behalf by its President, its Treasurer
or a Vice President by his manual signature, and its corporate seal to be
impressed hereon and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
GULF POWER COMPANY
[SEAL]
By:
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Vice President and Chief Financial Officer
Attest:
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Assistant Secretary
ASSIGNMENT
Pay to the order of The Bank of New York Trust Company of Florida,
N.A., as assignee of the Development Authority of Monroe County, under the Trust
Indenture, dated as of September 1, 2002, between the Development Authority of
Monroe County and The Bank of New York Trust Company of Florida, N.A., as
Trustee, securing the payment of Development Authority of Monroe County
Pollution Control Revenue Bonds (Gulf Power Company Plant ▇▇▇▇▇▇▇ Project),
First Series 2002 in the original principal amount of $42,000,000.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
By:____________________________
Chairman