-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Yt0BLvEEKqdaeATfCzExQgcKwkwND1EhJRdB07dIAUKTZoPFUBNCppj4rzdFrDGS ZVgL+Qu5G/CUW3SjSSYnJA== 0000044545-94-000013.txt : 19941013 0000044545-94-000013.hdr.sgml : 19941013 ACCESSION NUMBER: 0000044545-94-000013 CONFORMED SUBMISSION TYPE: 35-CERT PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19941012 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GULF POWER CO CENTRAL INDEX KEY: 0000044545 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 590276810 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 35-CERT SEC ACT: 1935 Act SEC FILE NUMBER: 070-08229 FILM NUMBER: 94552402 BUSINESS ADDRESS: STREET 1: 500 BAYFRONT PKWY CITY: PENSACOLA STATE: FL ZIP: 32501 BUSINESS PHONE: 9044446111 35-CERT 1 CERTIFICATE OF NOTIFICATION Filed by GULF POWER COMPANY Pursuant to orders of the Securities and Exchange Commission dated September 27, 1993, December 15, 1993, and September 26, 1994, in the matter of File No. 70-8229. - - - - - - - Gulf Power Company (the "Company") hereby certifies to said Commission, pursuant to Rule 24, as follows with respect to the transactions described particularly in Amendment No. 5 (Post- Effective No. 3), Amendment No. 6 (Post-Effective No. 4), Amendment No. 7 (Post-Effective No. 5), and Amendment No. 8 (Post-Effective No. 6) herein: 1. A Loan Agreement dated as of August 15, 1994 was made and entered into by and between the Company and the Development Authority of Monroe County (Georgia) (the "Monroe Authority"), relating to $22,000,000 principal amount of the Monroe Authority's Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1994, and all transactions relating thereto (including the issuance by the Company of its promissory note dated September 29, 1994 pursuant thereto) were carried out in accordance with the terms and conditions of and for the purposes represented by the application, as amended, and of said order with respect thereto. 2. A Loan Agreement dated as of September 1, 1994 was made and entered into by and between the Company and the Monroe Authority, relating to $20,000,000 principal amount of the Monroe Authority's Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), Second Series 1994, and all transactions relating thereto (including the issuance by the Company of its promissory note dated September 28, 1994 pursuant thereto) were carried out in accordance with the terms and conditions of and for the purposes represented by the application, as amended, and of said order with respect thereto. 3. The issuance and delivery by the Company of $22,000,000 aggregate principal amount of First Mortgage Bonds, 6.30% Pollution Control Series due September 1, 2024 (the "First Series Collateral Bonds"), pursuant to the Supplemental Indenture dated as of August 15, 1994, between the Company and The Chase Manhattan Bank (National Association), as Trustee, supplementing the - 2 - Company's first mortgage bond Indenture, were carried out in accordance with the terms and conditions of and for the purposes represented by the application, as amended, and of said order with respect thereto. 4. The issuance and delivery by the Company of $20,000,000 aggregate principal amount of First Mortgage Bonds, Second Pollution Control Series due September 1, 2024 (the "Second Series Collateral Bonds"), pursuant to the Supplemental Indenture dated as of September 1, 1994, between the Company and The Chase Manhattan Bank (National Association), as Trustee, supplementing the Company's first mortgage bond Indenture, were carried out in accordance with the terms and conditions of and for the purposes represented by the application, as amended, and of said order with respect thereto. 5. Filed herewith are the following exhibits: Exhibit A - Copy of Loan Agreement, dated as of August 15, 1994, between the Company and the Monroe Authority relating to the First Series 1994 Pollution Control Revenue Bonds. Exhibit B - Copy of Loan Agreement, dated as of September 1, 1994, between the Company and the Monroe Authority relating to the Second Series 1994 Pollution Control Revenue Bonds. Exhibit C - Copy of Trust Indenture, dated as of August 15, 1994, of the Monroe Authority to First Union National Bank of Florida, as Trustee, relating to the First Series 1994 Pollution Control Revenue Bonds. Exhibit D - Copy of Trust Indenture, dated as of September 1, 1994, of the Monroe Authority to First Union National Bank of Florida, as Trustee, relating to the Second Series 1994 Pollution Control Revenue Bonds. Exhibit E - Copy of Supplemental Indenture, dated as of August 15, 1994, between the Company and The Chase Manhattan Bank (National Association), as Trustee, relating to the First Series Collateral Bonds. - 3 - Exhibit F - Copy of Supplemental Indenture, dated as of September 1, 1994, between the Company and The Chase Manhattan Bank (National Association), as Trustee, relating to the Second Series Collateral Bonds. Exhibit G - Opinion of Beggs & Lane dated October 12, 1994. Dated: October 12, 1994 GULF POWER COMPANY By /s/Wayne Boston Wayne Boston Assistant Secretary EX-99.A 2 EXHIBIT A DEVELOPMENT AUTHORITY OF MONROE COUNTY and GULF POWER COMPANY _______________ LOAN AGREEMENT _______________ Dated as of August 15, 1994 Relating to Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) First Series 1994 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 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 First Series 1994 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 . . 3 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 . . . . . . . . . 4 ARTICLE IV SPECIAL COVENANTS SECTION 4.1. Use of Project . . . . . . . . . . . . . . 4 SECTION 4.2. Indemnity Against Claims . . . . . . . . . 5 SECTION 4.3. The Company to Maintain Its Corporate Existence; Conditions Under Which Exceptions Permitted . . . . . . . . . . . . . . . . . 5 SECTION 4.4. Annual Statement . . . . . . . . . . . . . 5 SECTION 4.5. Further Assurances and Corrective Instruments . . . . . . . . . . . . . . . . 6 SECTION 4.6. Maintenance of Project by Company . . . . . 6 - i - SECTION 4.7. Redemption or Purchase of Bonds . . . . . . 6 SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . 7 ARTICLE V EVENTS OF DEFAULT AND REMEDIES SECTION 5.1. Events of Default . . . . . . . . . . . . . 7 SECTION 5.2. Remedies on Default . . . . . . . . . . . . 8 SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses . . . . . . . . . . . . . . . . . 9 SECTION 5.4. No Additional Waiver Implied by One Waiver 9 ARTICLE VI MISCELLANEOUS SECTION 6.1. Term of This Agreement . . . . . . . . . . 9 SECTION 6.2. Notices . . . . . . . . . . . . . . . . . 10 SECTION 6.3. Binding Effect . . . . . . . . . . . . . . 10 SECTION 6.4. Severability . . . . . . . . . . . . . . . 10 SECTION 6.5. Amounts Remaining in the Bond Fund . . . . 10 SECTION 6.6. Amendments . . . . . . . . . . . . . . . . 10 SECTION 6.7. Execution in Counterparts . . . . . . . . 10 SECTION 6.8. Applicable Law . . . . . . . . . . . . . . 10 SECTION 6.9. Captions . . . . . . . . . . . . . . . . . 10 SECTION 6.10. Other Financing . . . . . . . . . . . . . 11 EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . 13 - ii - LOAN AGREEMENT dated as of August 15, 1994 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"), including particularly the Development Authorities Law set forth in the Official Code of Ga. Ann. Section 36-62-1, et seq., as amended (the "Act"), 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 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", "Bondholder", "Bonds", "Bond Fund", "Government Obligations" 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), as trustee, as heretofore and hereafter supplemented and amended by various supplemental indentures, including but not limited to the Supplemental Indenture dated as of August 15, 1994. "First Mortgage Bonds" means the first mortgage bonds issued under the First Mortgage pursuant to, and having the terms described in, Section 3.4 hereof. "First Series 1994 Bonds" means the bonds authorized to be issued under Section 2.02 of the Indenture. "Indenture" means the Trust Indenture dated as of August 15, 1994, relating to Pollution Control Revenue Bonds, between the Issuer and First Union National Bank of Florida, 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. "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 Loan Agreement, dated as of December 1, 1984, between the Issuer and the Company, delivered in connection with the issuance of the Refunded Bonds. "Plans" and "Project" mean the "Plans" and "Project" as respectively defined in Article I of the Original Agreement. "Refunded Bonds" means $22,000,000 principal amount of the Issuer's Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1984. 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 First Series 1994 Bonds; Additional Bonds. In order to provide funds for the purpose set forth in Section 3.1 hereof, the Issuer agrees that it will initially issue and deliver the First Series 1994 Bonds to the purchasers thereof at a price equal to 100% of the principal amount thereof, plus accrued interest from August 15, 1994 to the date of payment and delivery, 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. 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 - 2 - 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 First Series 1994 Bonds, of refunding the Refunded Bonds within 90 days after the date of initial issuance of the First Series 1994 Bonds. The Company hereby agrees to cause the proceeds of the First Series 1994 Bonds (exclusive of the accrued interest paid by the initial purchasers of the First Series 1994 Bonds)to be applied exclusively to the foregoing purpose and to cause such Refunded Bonds to be redeemed within 90 days after the date of initial issuance of the First Series 1994 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 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 of Additional Bonds and (iii) 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 Notes 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 - 3 - 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 as provided in Section 3.2 hereof. 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 obligation under 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. SECTION 3.5. Assignment and Pledge of Payments and Rights Under the Notes, the Agreement and the First Mortgage Bonds. 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 Notes and all payments thereunder, (ii) this Agreement and all moneys receivable hereunder (except for payments under Sections 4.2 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. 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 other - 4 - 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 4.2. 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 Notes or hereunder, (b) any taxes, assessments, impositions and other charges upon payments by the Company to the Issuer under the Notes 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 in Maine and its 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 Notes 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 - 5 - 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 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 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. - 6 - SECTION 4.8. Non-Arbitrage Covenant. The Company and the Issuer each covenants that it shall take no action, nor shall the Company approve the Trustee's taking any action or making 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. 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 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 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 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 - 7 - 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 Notes to be - 8 - 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 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 Notes 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 Notes shall have been paid. - 9 - 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, Forsyth, Georgia 31029, Attention: Chairman; if to the Company, at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention: Treasurer, with copies to Southern Company Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346, Attention: Corporate Finance Department; and if to the Trustee, at 214 Hogan Street, 2nd Floor, Jacksonville, Florida 32202, 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. 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 and the Notes shall be governed by and construed in accordance with the laws of the State of Georgia. SECTION 6.9. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or - 10 - 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. 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: /s/James A. Vaughan Chairman ATTEST: /s/Marvin T. Carr, Jr. Secretary GULF POWER COMPANY [SEAL] By: /s/A. E. Scarbrough Vice President ATTEST: /s/W. E. Tate Secretary EXHIBIT A GULF POWER COMPANY PROMISSORY NOTE GULF POWER COMPANY ("Gulf"), a corporation organized and existing under the laws of the State of Maine, acknowledges itself indebted and for value received hereby promises to pay to the order of the Development Authority of Monroe County (the "Authority"), and its successors and assigns, the principal sum of ___________________ DOLLARS ($________ ) together with interest on the unpaid principal balance thereof from the date hereof until Gulf'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 Gulf 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 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 August 15, 1994, pursuant to which the Authority has loaned to Gulf the proceeds of the sale of the Authority's $__________ of Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), ____________ Series ___________ (the "Bonds"). Additional similar Notes may be issued by Gulf as provided in the Agreement. This Note (together with the Agreement) has been assigned to First Union National Bank of Florida (the "Trustee"), acting pursuant to a trust indenture dated as of August 15, 1994 (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, 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 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 - 13 - 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 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:____________________________ Attest:________________________ - 14 - ASSIGNMENT Pay to the order of First Union National Bank of Florida, as assignee of the Development Authority of Monroe County, under the Trust Indenture, dated as of August 15, 1994, between the Development Authority of Monroe County and First Union National Bank of Florida, as Trustee, securing the payment of Development Authority of Monroe County Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), ______ Series 1994, in the original principal amount of $_____________. DEVELOPMENT AUTHORITY OF MONROE COUNTY By:____________________________ Chairman EX-99.B 3 EXHIBIT B DEVELOPMENT AUTHORITY OF MONROE COUNTY and GULF POWER COMPANY LOAN AGREEMENT Dated as of September 1, 1994 Relating to $20,000,000 Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) Second Series 1994 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 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 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. First Mortgage Bonds . . . . . . . . . . . 3 SECTION 3.5. Assignment and Pledge of Payments and Rights Under the Note, the Agreement and the First Mortgage Bonds . . . . . . . . . 3 SECTION 3.6. Provision of Credit Agreement. . . . . . 4 ARTICLE IV SPECIAL COVENANTS 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 . . . . . . . . . . . . . . . . 5 SECTION 4.4. Annual Statement . . . . . . . . . . . . . 5 -i- 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 . . . . . 6 SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . 6 ARTICLE V EVENTS OF DEFAULT AND REMEDIES SECTION 5.1. Events of Default . . . . . . . . . . . . 7 SECTION 5.2. Remedies on Default . . . . . . . . . . . 8 SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses . . . . . . . . . . . . . . . . . 9 SECTION 5.4. No Additional Waiver Implied by One Waiver . . . . . . . . . . . . . . . . . . 9 ARTICLE VI MISCELLANEOUS SECTION 6.1. Term of This Agreement . . . . . . . . . . 9 SECTION 6.2. Notices . . . . . . . . . . . . . . . . . 9 SECTION 6.3. Binding Effect . . . . . . . . . . . . . . 9 SECTION 6.4. Severability . . . . . . . . . . . . . . . 10 SECTION 6.5. Amendments . . . . . . . . . . . . . . . . 10 SECTION 6.6. Execution in Counterparts . . . . . . . . 10 SECTION 6.7. Applicable Law . . . . . . . . . . . . . . 10 SECTION 6.8. Captions . . . . . . . . . . . . . . . . . 10 SECTION 6.9. Other Financing . . . . . . . . . . . . . 10 -ii- LOAN AGREEMENT dated as of September 1, 1994 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), 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 "Bondholder", "Bonds", "Business Day", "Company Indenture", "Credit Agreement", "First Mortgage Bonds", "Government Obligations", "Refunded Bonds", "Remarketing Agent", and "Trustee" have the same meanings given and assigned to such words in Article I of the Indenture (as hereinafter defined). "Plans" and "Project" have the same meanings given and assigned to such words in Article I of the Original Agreement (as hereinafter defined). "Agreement" means this Loan Agreement and any amendments and supplements hereto. "Event of Default" means any of the occurrences enumerated in Section 5.1 of this Agreement. "Indenture" means the Trust Indenture dated as of September 1, 1994, relating to Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), Second Series 1994, between the Issuer and First Union National Bank of Florida, 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 the Loan Agreement dated as of December 1, 1984 between the Issuer and the Company, delivered in connection with the issuance of the Refunded Bonds. ARTICLE II ACQUISITION AND COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS SECTION 2.1. Acquisition and Completion of the Project. The Company represents that it has caused the acquisition, construction, installation and equipping of the Project to be completed substantially in accordance with the Plans. 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. 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 to be applied exclusively to such purpose and to cause the redemption 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 -2- 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. First Mortgage Bonds. Concurrently with the Issuer's delivery of the Bonds to the Trustee, the Company will execute and deliver to the Trustee, in order to secure the Company's obligation under the Note issued concurrently therewith, First Mortgage Bonds, registered in the name of the Trustee, equal in principal amount to the Bonds and having the same stated rate or rates of interest and the same maturity date as the Bonds. SECTION 3.5. Assignment and Pledge of Payments and Rights Under the Note, the Agreement and the First Mortgage Bonds. 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, (ii) this Agreement and all moneys receivable hereunder (except for payments under Sections 4.2 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 -3- 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. SECTION 3.6. Provision of Credit Agreement. On or before the date of initial issuance of the Bonds, the Company shall enter into the Credit Agreement for the purpose of assuring that the Company will have a source of funds available, if needed, to perform its obligations under the Note to provide any funds necessary to purchase Bonds which have been tendered for purchase but not remarketed. The Company shall be under no obligation to maintain the Credit Agreement or any similar liquidity agreement in place during the term of the Bonds. Nonetheless, the Company hereby agrees to notify the Trustee and the Remarketing Agent in writing at least 20 Business Days prior to any termination of the Credit Agreement at the request of the Company. 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 other than any interest in the Company's property shared by all holders of the Company's bonds issued under the Company Indenture, including the First Mortgage 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. -4- 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 in Maine and its 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 -5- all costs of operating, maintaining and repairing the Project; provided, however, that the Company shall not be under any obligation to renew, repair or replace any inadequate, obsolete, worn-out, unsuitable, undesirable or unnecessary portion of the Project. SECTION 4.7. Redemption or Purchase of Bonds. The Issuer shall take all steps then necessary under the applicable provisions of the Indenture for the redemption or purchase (other than a purchase pursuant to tenders as provided in the form of Bonds or in lieu of redemption as provided in Section 3.07 of the Indenture) of Bonds upon receipt, not less than ten days prior to the day on which the Trustee is required to give notice (if any) thereof pursuant to the Indenture, by the Issuer and the Trustee from the Company of a written notice specifying: (a) the principal amount of Bonds to be redeemed or purchased; (b) the date of such redemption or purchase; and (c) in the case of a redemption of Bonds, directions to mail a notice of redemption. In the case of a purchase of Bonds, the written notice to the Trustee shall, if available moneys on deposit with the Trustee are insufficient to purchase the principal amount of Bonds specified in (a) above, be accompanied by a deposit with the Trustee of cash or Government Obligations sufficient, together with other available moneys on deposit with the Trustee, to make the directed purchase of Bonds. SECTION 4.8. Non-Arbitrage Covenant. The Company and the Issuer each covenants that it shall take no action, nor shall the Company direct the Trustee's taking any action or making 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. -6- 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 -7- 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; (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. -8- 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, Forsyth, Georgia 31029; if to the Company, at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention: Treasurer, with copies to Southern Company Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346, Attention: Corporate Finance Department; and if to the Trustee, at 214 Hogan Street, 2nd Floor, Jacksonville, Florida 32202, 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 -9- 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. -10- 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: /s/James A. Vaughan Chairman ATTEST: /s/Marvin T. Carr, Jr. Secretary GULF POWER COMPANY [SEAL] By: /s/A. E. Scarbrough Vice President ATTEST: /s/W. E. Tate Secretary EXHIBIT A GULF POWER COMPANY PROMISSORY NOTE GULF POWER COMPANY ("Gulf"), a corporation organized and existing under the laws of the State of Maine, acknowledges itself indebted and for value received hereby promises to pay to the order of the Development Authority of Monroe County (the "Authority"), and its successors and assigns, the principal sum of TWENTY MILLION DOLLARS ($20,000,000) 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, 1994, pursuant to which the Authority has loaned to Gulf the proceeds of the sale of the Authority's $20,000,000 of Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), Second Series 1994 (the "Bonds"). This Note (together with the Agreement) has been assigned to First Union National Bank of Florida (the "Trustee"), acting pursuant to a trust indenture dated as of September 1, 1994 (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, 2024. 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 By:___________________ Attest:_______________ ASSIGNMENT Pay to the order of First Union National Bank of Florida, as assignee of the Development Authority of Monroe County under the Trust Indenture, dated as of September 1, 1994, between the Development Authority of Monroe County and First Union National Bank of Florida, as Trustee, securing the payment of Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), ______ Series 1994, in the original principal amount of $__________. DEVELOPMENT AUTHORITY OF MONROE COUNTY By:_____________________ Chairman EX-99.C 4 EXHIBIT C DEVELOPMENT AUTHORITY OF MONROE COUNTY to FIRST UNION NATIONAL BANK OF FLORIDA, Trustee TRUST INDENTURE Dated as of August 15, 1994 Relating to Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) First Series 1994 TRUST INDENTURE TABLE OF CONTENTS (This Table of Contents is for convenience of reference only and is not a part of this Trust Indenture) Page PARTIES ............................................ 1 RECITALS ........................................... 1 Form of Bond ................................... 2 Form of Trustee's Certificate of Authentication ................................ 9 Form of Validation Certificate ................. 9 GRANTING CLAUSE .................................... 10 HABENDUM CLAUSE .................................... 11 ARTICLE I DEFINITIONS ARTICLE II THE BONDS SECTION 2.01. Authorized Amount of Bonds . . . . . . . 13 SECTION 2.02. Issuance of Bonds . . . . . . . . . . . 13 SECTION 2.03. Form of Bonds. . . . . . . . . . . . . . 14 SECTION 2.04. Details, Execution and Payment. . . . . 14 SECTION 2.05. Authentication, Registration, Exchange, Transfer and Ownership of Bonds . . . . 16 SECTION 2.06. Delivery of First Series 1994 Bonds; Application of Proceeds. . . . . . . . . 17 SECTION 2.07. Temporary Bonds . . . . . . . . . . . . 18 SECTION 2.08. Mutilated, Destroyed or Lost Bonds . . . 19 SECTION 2.09. Destruction of Bonds . . . . . . . . . . 19 SECTION 2.10. Additional Bonds . . . . . . . . . . . . 19 ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY SECTION 3.01. Redemption Dates and Prices . . . . . . 21 SECTION 3.02. Notice of Redemption . . . . . . . . . . 22 SECTION 3.03. Effect of Call for Redemption . . . . . 22 -i- Page SECTION 3.04. Partial Redemption . . . . . . . . . . . 23 SECTION 3.05. Funds in Trust; Unclaimed Funds . . . . 23 SECTION 3.06. Special Redemption . . . . . . . . . . . 23 SECTION 3.07. Surrender of First Mortgage Bonds . . . 24 SECTION 3.08. Satisfaction of First Mortgage Bonds . . 25 ARTICLE IV GENERAL COVENANTS SECTION 4.01. Payment of Principal and Premium, If Any, and Interest; Limited Obligation . . . . 25 SECTION 4.02. Performance of Covenants; Issuer . . . . 25 SECTION 4.03. Instruments of Further Assurance . . . . 26 SECTION 4.04. Recordation . . . . . . . . . . . . . . 26 SECTION 4.05. Inspection of Project Books . . . . . . 26 SECTION 4.06. Rights Under Agreement . . . . . . . . . 26 SECTION 4.07. Designation of Additional Paying Agents 27 SECTION 4.08. Existence of Issuer . . . . . . . . . . 27 ARTICLE V REVENUES AND FUNDS SECTION 5.01. Source of Payment of Bonds . . . . . . . 27 SECTION 5.02. Creation of Bond Fund . . . . . . . . . 27 SECTION 5.03. Payments into the Bond Fund . . . . . . 27 SECTION 5.04. Use of Moneys in the Bond Fund . . . . . 28 SECTION 5.05. Custody of the Bond Fund . . . . . . . . 29 SECTION 5.06. Non-presentment of Bonds . . . . . . . . 29 SECTION 5.07. Moneys to Be Held in Trust . . . . . . . 29 SECTION 5.08. Repayment to the Company from the Bond Fund . . . . . . . . . . . . . . . 29 SECTION 5.09. Creation of Redemption Fund. . . . . . . 30 ARTICLE VI INVESTMENTS SECTION 6.01. Investment of Bond Fund and Redemption Fund Moneys . . . . . . . . . . . . . . 30 SECTION 6.02. Permitted Investments . . . . . . . . . 30 SECTION 6.03. Non-Arbitrage Covenant . . . . . . . . . 31 -ii- Page ARTICLE VII RELEASE OF LIEN SECTION 7.01. Release of Lien . . . . . . . . . . . . 32 ARTICLE VIII DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS SECTION 8.01. Events of Default . . . . . . . . . . . 33 SECTION 8.02. Acceleration . . . . . . . . . . . . . . 33 SECTION 8.03. Other Remedies . . . . . . . . . . . . . 34 SECTION 8.04. Legal Proceedings by Trustee . . . . . . 34 SECTION 8.05. Right of Bondholders to Direct Proceedings . . . . . . . . . . . . . . 35 SECTION 8.06. Appointment of Receivers . . . . . . . . 35 SECTION 8.07. Waiver . . . . . . . . . . . . . . . . . 35 SECTION 8.08. Application of Moneys . . . . . . . . . 36 SECTION 8.09. Remedies Vested in Trustee . . . . . . . 37 SECTION 8.10. Rights and Remedies of Bondholders . . . 38 SECTION 8.11. Termination of Proceedings . . . . . . . 39 SECTION 8.12. Waivers of Events of Default . . . . . . 39 SECTION 8.13. Notice of Default under Section 8.01(c); Opportunity of Issuer and the Company to Cure Such Default . . . . . . . . . . . 39 ARTICLE IX THE TRUSTEE SECTION 9.01. Acceptance of the Trusts . . . . . . . . 40 SECTION 9.02. Fees, Charges and Expenses of Trustee . 43 SECTION 9.03. Notice to Bondholders if an Event of Default Occurs . . . . . . . . . . . . . 44 SECTION 9.04. Intervention by Trustee . . . . . . . . 44 SECTION 9.05. Successor Trustee . . . . . . . . . . . 44 SECTION 9.06. Resignation by Trustee . . . . . . . . . 44 SECTION 9.07. Removal of Trustee . . . . . . . . . . . 44 SECTION 9.08. Appointment of Successor Trustee . . . . 45 SECTION 9.09. Concerning Any Successor Trustee . . . . 45 SECTION 9.10. Successor Trustee as Bond Registrar, Custodian of Bond Fund and Paying Agent 46 SECTION 9.11. Trustee and Issuer Required to Accept Directions and Actions of Company . . . 46 -iii- Page SECTION 9.12. No Transfer of Notes or First Mortgage Bonds Held by the Trustee; Exception . . 46 SECTION 9.13. Filing of Certain Continuation Statements . . . . . . . . . . . . . . . 47 SECTION 9.14. Voting of First Mortgage Bonds Held by the Trustee . . . . . . . . . . . . . . 47 ARTICLE X INDENTURES SUPPLEMENTAL HERETO SECTION 10.01. Supplemental Indentures Not Requiring Consent of Bondholders . . . . . . . . 48 SECTION 10.02. Supplemental Indentures Requiring Consent of Bondholders . . . . . . . . . . . . 49 SECTION 10.03. Trustee Authorized to Join in Supplements; Reliance on Counsel . . . . . . . . . . 50 ARTICLE XI AMENDMENT OF AGREEMENT SECTION 11.01. Amendments, Etc., to Agreement Not Requiring Consent of Bondholders . . . 51 SECTION 11.02. Amendments, Etc., to Agreement Requiring Consent of Bondholders . . . . . . . . 51 SECTION 11.03. Trustee Authorized to Join in Amendments; Reliance on Counsel . . . . . . . . . . 51 ARTICLE XII MISCELLANEOUS SECTION 12.01. Consents, Etc., of Bondholders . . . . 52 SECTION 12.02. Limitation of Rights . . . . . . . . . 52 SECTION 12.03. Severability . . . . . . . . . . . . . 52 SECTION 12.04. Notices . . . . . . . . . . . . . . . . 52 SECTION 12.05. Trustee as Paying Agent and Bond Registrar . . . . . . . . . . . . . . . 53 SECTION 12.06. Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . 53 SECTION 12.07. Counterparts . . . . . . . . . . . . . 53 SECTION 12.08. Applicable Provisions of Law . . . . . 53 SECTION 12.09. Captions . . . . . . . . . . . . . . . 54 SECTION 12.10. No Liability of Officers . . . . . . . 54 -iv- THIS INDENTURE made and entered into as of August 15, 1994, by and 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 FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association duly organized, existing and authorized to accept and execute trusts of the character herein set out under and by virtue of the laws of the United States of America, with its principal corporate trust office located in Jacksonville, Florida, as Trustee (the "Trustee"). RECITALS A. In furtherance of its statutory purposes, the Issuer has entered into a Loan Agreement dated as of August 15, 1994 (the "Agreement") with Gulf Power Company (the "Company") providing for the undertaking by the Issuer to loan amounts to the Company in order, inter alia, to refund certain of the Issuer's bonds heretofore issued to finance the acquisition, construction, installation and equipping of the Company's interest in certain air and water pollution control and sewage and solid waste disposal facilities, or portions thereof, at Plant Scherer, in Monroe County, Georgia (the "Project"). B. The Agreement provides that, for the purposes therein set forth, the Issuer will issue and sell its Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) in one or more series (the "Bonds"); that the Issuer will loan the proceeds of the Bonds to the Company; that to evidence the Loan (as hereinafter defined) the Company will execute and deliver, concurrently with the issuance of each series of Bonds, a non-negotiable promissory note in a like principal amount bearing interest at the rate borne by such series of Bonds; and that as security for its obligation to pay the promissory notes the Company will deliver to the Trustee, concurrently with the issuance of each series of Bonds, first mortgage bonds issued under and secured by the Company's First Mortgage (as hereinafter defined) in accordance with, and except as otherwise provided in, Section 3.4 of the Agreement. C. The execution and delivery of this Indenture (as hereinafter defined) and the Agreement have been in all respects duly and validly authorized by resolution duly adopted by the Issuer. D. In order to provide funds for the purpose set forth in the Agreement, the Issuer has duly authorized the -1- issuance and sale of its Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1994, in the aggregate principal amount of $22,000,000 (the "First Series 1994 Bonds"). E. The First Series 1994 Bonds are to be in substantially the following form: [FORM OF BOND] No. ......... $ UNITED STATES OF AMERICA STATE OF GEORGIA DEVELOPMENT AUTHORITY OF MONROE COUNTY (GEORGIA) POLLUTION CONTROL REVENUE BOND (Gulf Power Company Plant Scherer Project) First Series 1994 Development Authority of Monroe County (herein called the "Issuer"), a public body corporate and politic, duly created, activated and existing under the laws of the State of Georgia, for value received, hereby promises to pay, solely from the special fund provided therefor as hereinafter set forth, to , or registered assigns or legal representative, on the 1st day of September, 2024 (or earlier as hereinafter referred to), upon the presentation and surrender hereof at the principal corporate trust office of the Trustee (hereinafter mentioned) located in Jacksonville, Florida, the principal sum of DOLLARS in any coin or currency of the United States of America which on the date of payment thereof is legal tender for the payment of public and private debts, and to pay, solely from said special fund, to the registered owner hereof by check or draft mailed to the registered owner at his address as it appears on the bond registration books of the Issuer, interest on said principal sum from the latest semiannual interest payment date to which interest has been paid on 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 March 1, 1995, in which case from August 15, 1994, at the rate of six and thirty hundredths per centum (6.30%) per annum until payment of said principal sum, such interest being payable semiannually on the 1st days of March and September in each year in like -2- coin or currency. Interest shall be calculated on the basis of a year of 360 days and twelve 30-day months. The interest payable on any March 1 or September 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 February 15 or August 15, as the case may be, next preceding such interest payment date or, if such February 15 or August 15 shall be a legal holiday or a day on which banking institutions in Jacksonville, Florida, are authorized 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. The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Georgia, particularly the Development Authorities Law (O.C.G.A. Section 36-62-1, et seq., as amended), and pursuant to a resolution adopted by the Issuer on August 31, 1994, which resolution authorizes the execution and delivery of the Agreement (hereinafter mentioned) and the Indenture. The Bonds and the interest thereon are limited special obligations of the Issuer and are payable solely from the special fund hereinafter referred to out of the revenues and other amounts derived from the Agreement, the Notes and the first mortgage bonds (hereinafter mentioned) and are secured as set forth in the Indenture. The Bonds and premium, if any, and interest thereon shall not be deemed to constitute a debt or general obligation or a pledge of the faith and credit of the State of Georgia or any political subdivision thereof, including the County of Monroe. Neither the State of Georgia nor any political subdivision thereof nor the Issuer shall be obligated to pay the principal of the Bonds or premium, if any, or interest thereon or other costs incident thereto except from the revenues and receipts pledged therefor, and neither the faith and credit nor the taxing power of the State of Georgia or any political subdivision thereof is pledged to the payment of the principal of the Bonds or premium, if any, or interest thereon or other costs incident thereto. Payments under the Notes sufficient for the prompt payment when due of the principal of and premium, if any, and interest on the Bonds are to be paid to the Trustee by the Company (hereinafter mentioned) for the account of the Issuer and deposited in a special account created by the Issuer and designated "Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) First Series 1994 Bond Fund" (herein called the "Bond Fund") and have been duly pledged and assigned for that -3- purpose. In addition, substantially all other rights of the Issuer under the Agreement, including the Company's obligation to deliver to the Trustee concurrently with the issuance of this series of Bonds the Company's first mortgage bonds, have also been assigned to the Trustee to secure payment of the principal of and premium, if any, and interest on the Bonds issued under the Indenture. This Bond is one of a duly authorized series of revenue bonds of the Issuer known as "Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1994", issued for the purpose of refunding certain of the Issuer's bonds heretofore issued to finance the cost of acquiring, constructing, installing and equipping certain air and water pollution control and sewage and solid waste disposal facilities (herein called the "Project"). The Bonds of this series initially authorized aggregate Twenty-two Million Dollars ($22,000,000) in principal amount. The Indenture provides that additional series of Bonds may be issued under the Indenture for the purpose of refunding any of the Bonds then outstanding of any series. The Bonds of this series and all such additional Bonds (herein called collectively the "Bonds") are issued or are to be issued under and pursuant to a trust indenture (said trust indenture, together with all trust indentures supplemental thereto as therein permitted, being herein called the "Indenture"), dated as of the 15th day of August, 1994, by and between the Issuer and First Union National Bank of Florida, Jacksonville, Florida, as Trustee (said banking association and any successor trustee under the Indenture being herein called the "Trustee"), an executed counterpart of which Indenture is on file at the principal corporate trust office of the Trustee. Reference is hereby made to the Indenture for the provisions, among others, with respect to the custody and application of the proceeds of Bonds issued under the Indenture, the collection and disposition of revenues, a description of the funds charged with and pledged to the payment of the principal of and premium, if any, and interest on the Bonds, the nature and extent of the security, the terms and conditions under which the Bonds are or may be issued, the rights, duties and obligations of the Issuer and of the Trustee, the rights of the holders of the Bonds and the terms and conditions pursuant to which the Indenture and the Agreement may be amended, and, by the acceptance of this Bond, the holder hereof assents to all of the provisions of the Indenture. -4- The Issuer has entered into a Loan Agreement, dated as of August 15, 1994 (herein called the "Agreement"), with Gulf Power Company, a corporation organized and existing under the laws of the State of Maine (herein called the "Company"), under the provisions of which the Issuer has loaned the proceeds of the Bonds of this series to the Company and has agreed to loan the proceeds of additional Bonds to the Company (herein called the "Loan"). In order to evidence the Loan and the Company's obligation to repay the same, the Company has executed and delivered its non- negotiable promissory note and has agreed to issue additional such notes concurrently with the issuance of additional series of Bonds (herein called the "Notes"). The Notes provide for the repayment by the Company of the Loan, including interest thereon, in installments sufficient to pay the principal of and premium, if any, and interest on the Bonds as the same shall become due and payable, and the Agreement further obligates the Company to pay the cost of operating, maintaining and repairing the Project. The Notes provide that the payments thereunder shall be paid directly to the Trustee as assignee of the Issuer; such payments are to be deposited to the credit of the Bond Fund created under the Indenture which special fund is pledged to and charged with the payment of the principal of and premium, if any, and interest on all Bonds issued under the Indenture and such Loan repayments have been duly pledged and assigned for that purpose. The Bonds are issuable as fully registered Bonds without coupons in denominations of $5,000 or any multiple thereof. At the principal corporate trust office of the Trustee, located in Jacksonville, Florida, in the manner and subject to the limitations, conditions and charges provided in the Indenture, Bonds may be exchanged for an equal aggregate principal amount of Bonds of the same series and maturity, of authorized denominations and bearing interest at the same rate. The Bonds of this series are non-callable for redemption prior to September 1, 1999, except in the event the Trustee and the Issuer shall have received written notice from the Company of its determination of the occurrence of certain events specified in Section 3.06 of the Indenture. If called for redemption in such event, the Bonds of this series shall be subject to redemption at any time in whole at the principal amount thereof plus accrued interest to the redemption date but without premium. The Bonds of this series are also subject to redemption by the Issuer prior to maturity on or after September 1, 1999, in whole at any time or in part from time to time -5- (but if in part by lot or in such other random manner as the Trustee in its discretion may determine), at the redemption prices (expressed as percentages of principal amount) set forth in the table below plus accrued interest to the redemption date. Redemption Date Redemption (dates inclusive) Price September 1, 1999 to August 31, 2000 . . . 102% September 1, 2000 to August 31, 2001 . . . 101% September 1, 2001 and thereafter . . . . . 100% Any such redemption, either in whole or in part, shall be made upon at least thirty (30) days' prior notice as provided in the Indenture, and shall be made in the manner and under the terms and conditions provided in the Indenture. On the date designated for redemption, notice having been given and moneys for payment of the redemption price and accrued interest being held by the Trustee or by the paying agents, all as provided in the Indenture, the Bonds or portions of Bonds so called for redemption shall become and be due and payable at the redemption price provided for redemption of such Bonds or such portions thereof on such date, interest on such Bonds or such portions thereof so called for redemption shall cease to accrue, such Bonds or such portions thereof so called for redemption shall cease to be entitled to any benefit or security under the Indenture, and the registered owners thereof shall have no rights in respect of such Bonds or such portions thereof so called for redemption except to receive payment of the redemption price and accrued interest thereon so held by the Trustee or by the paying agents. If a portion of this Bond shall be called for redemption, a new registered Bond in principal amount equal to the unredeemed portion hereof will be issued to the registered owner upon the surrender hereof. The holder of this Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture or to institute, appear in or defend any suit or other proceeding with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Bonds then outstanding under the Indenture may become or may be declared due and payable before the stated -6- maturity thereof, together with the interest accrued thereon. Modifications or alterations of the Indenture or any trust indenture supplemental thereto or of the Agreement may be made only to the extent and in the circumstances permitted by the Indenture. The transfer of this Bond may be registered by the registered owner hereof in person or by his attorney or legal representative at the principal corporate trust office of the Trustee, located in Jacksonville, Florida, but only in the manner and subject to the limitations and conditions provided in the Indenture and upon surrender and cancellation of this Bond. Upon any such registration of transfer the Issuer shall execute and the Trustee shall authenticate and deliver in exchange for this Bond a new Bond or Bonds, registered in the name of the transferee, of authorized denominations, in aggregate principal amount equal to the principal amount of this Bond, of the same series and maturity and bearing interest at the same rate. No covenant or agreement contained in this Bond or the Indenture shall be deemed to be a covenant or agreement of any member, agent or employee of the Issuer in his individual capacity, and neither the officers of the Issuer nor any official executing this Bond shall be liable personally on this Bond or be subject to any personal liability or accountability by reason of the issuance of this Bond. This Bond shall be fully negotiable as an investment security as provided by the laws of the State of Georgia and is issued with the intent that the laws of the State of Georgia shall govern its construction. All acts, conditions and things required to happen, exist and be performed precedent to and in the issuance of this Bond and the execution of the Indenture have happened, exist and have been performed as so required. This Bond shall not be valid or become obligatory for any purpose or be entitled to any benefit or security under the Indenture until it shall have been authenticated by the execution by the Trustee of the certificate of authentication endorsed hereon. -7- IN WITNESS WHEREOF, the Development Authority of Monroe County has caused this Bond to be executed in its name and on its behalf by the facsimile signature of its Chairman or Vice Chairman and its official seal or a facsimile thereof to be impressed or printed hereon and attested by the manual or facsimile signature of its Secretary or Assistant Secretary. DEVELOPMENT AUTHORITY OF MONROE COUNTY By: ____________________ ____________________ -8- [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] (To be endorsed on all Bonds) CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds of the series designated therein and issued under the provisions of the within-mentioned Indenture. FIRST UNION NATIONAL BANK OF FLORIDA, as Trustee Date: ____________________ By: ____________________ Authorized Signatory [FORM OF VALIDATION CERTIFICATE] (To be endorsed on all Bonds) STATE OF GEORGIA SS: COUNTY OF MONROE The undersigned, Clerk of the Superior Court of Monroe County, Georgia, hereby certifies that the within First Series 1994 Bond was validated and confirmed by judgment of the Superior Court of Monroe County, Georgia rendered on the 19th day of September, 1994, that no intervention or objection was filed thereto and that no appeal has been taken therefrom. IN WITNESS WHEREOF, I have caused this Certificate to be executed by the use of my facsimile signature and have caused the official seal of the Court or a facsimile thereof to be affixed hereto. ____________________ Clerk, Superior Court, Monroe County, Georgia -9- F. All acts, conditions and things required by the Constitution and laws of the State of Georgia to happen, exist and be performed precedent to and in the execution and delivery of this Indenture and the Agreement have happened, exist and have been performed as so required, in order to make this Indenture a valid and binding trust indenture for the security of the Bonds in accordance with its terms and in order to make the Agreement a valid and binding loan agreement in accordance with its terms. G. The Trustee has accepted the trusts created by this Indenture and in evidence thereof has joined in the execution hereof. NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in consideration of the premises, of the acceptance by the Trustee of the trusts hereby created, and the purchase and acceptance of the Bonds by the holders thereof, and also for and in consideration of the sum of One Dollar ($1.00) to the Issuer in hand paid by the Trustee at or before the execution and delivery of this Indenture, the receipt of which is hereby acknowledged, and for the purpose of fixing and declaring the terms and conditions upon which the Bonds are to be issued, authenticated, delivered, secured and accepted by all persons who shall from time to time be or become holders thereof, and in order to secure the payment of all Bonds at any time issued and outstanding hereunder and the interest and the redemption premiums, if any, thereon according to their tenor, purport and effect, and in order to secure the performance and observance of all the covenants, agreements and conditions therein or herein contained; the Issuer has executed and delivered this Indenture, will cause the Company to deliver to the Trustee the Company's promissory note dated the date of the initial issuance of the First Series 1994 Bonds and the Company's First Mortgage Bonds, 6.30% Pollution Control Series due September 1, 2024, and will cause the Company to deliver any other of its promissory notes and First Mortgage Bonds required in connection with the issuance of Additional Bonds (as hereinafter defined); the Issuer does hereby bargain, sell, convey, assign and pledge to the Trustee, and grant to the Trustee a security interest in, all rights, title and interests of the Issuer in, to and under such promissory note and all payments made and to be made thereunder and in, to and under such First Mortgage Bonds and all payments, if any, made and to be made thereunder as security for the payment of all outstanding First Series 1994 Bonds and any Additional Bonds and the interest and the premium, if any, thereon and does hereby bargain, sell, convey, assign and pledge to the Trustee, and grant to the Trustee a security interest in, all other rights, title and -10- interests of the Issuer in, to and under the Agreement and all moneys receivable thereunder (except for payments to be received under Sections 4.2 and 5.3 of the Agreement) as security for the satisfaction of any other obligation assumed by it in connection with all outstanding Bonds at any time issued hereunder; TO HAVE AND TO HOLD the same unto the Trustee and its successors in trust forever; IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for the equal and proportionate benefit and security of all and singular present and future holders of the Bonds issued and to be issued under this Indenture, without preference, priority or distinction as to lien or otherwise, except as otherwise hereinafter provided, of any one Bond over any other Bond, by reason of priority in the issue, sale or negotiation thereof or otherwise; PROVIDED, HOWEVER, that if the Issuer, its successors or assigns shall pay or cause to be paid the principal of, premium, if any, and interest on the Bonds due or to become due thereon, at the times and in the manner mentioned in the Bonds, and shall cause the payments to be made into the Bond Fund (hereinafter defined) as required under Article V hereof or shall provide, as permitted hereby, for the payment thereof pursuant to the provisions of Article VII hereof, and shall perform all the covenants and conditions required of it by this Indenture, and shall pay or cause to be paid to the Trustee and any additional paying agents all sums of money due or to become due to them in accordance with the terms and provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall terminate and the Trustee shall release this Indenture and shall execute such documents to evidence such termination and release as may be reasonably required by the Issuer; otherwise this Indenture to be and remain in full force and effect. THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all Bonds from time to time issued and secured hereunder are to be issued, authenticated and delivered, and all said property, rights and interests, including, without limitation, the amounts hereby assigned and pledged, are to be dealt with and disposed of subject to the terms of this Indenture, and the Issuer agrees with the Trustee and with the respective owners, from time to time, of said Bonds, or part thereof, as follows: -11- ARTICLE I DEFINITIONS The terms "Agreement", "Company" and "Issuer" have the same meanings given and assigned to such words in the Recitals hereto. The terms "First Mortgage", "First Mortgage Bonds", "First Series 1994 Bonds", "Loan", "Notes", "Project" and "Refunded Bonds" defined in Article I of the Agreement shall have the same meanings in this Indenture. In addition, the following words and phrases shall have the following meanings: "Act" means the Development Authorities Law as set forth in the Official Code of Ga. Ann. Section 36-62-1, et seq., as amended. "Additional Bonds" means the bonds authorized to be issued under Section 2.10 of this Indenture. "Bond Fund" means the trust fund created by Section 5.02 of this Indenture. "Bondholder" or "holder" or "owner of the Bonds" means the person or entity in whose name any Bond is registered. "Bonds" means the bonds authorized to be issued under Sections 2.02 and 2.10 of this Indenture. "event of default" means any occurrence or event described in Section 8.01 hereof. "First Mortgage Trustee" means the trustee at the time serving as such under the First Mortgage. "Government Obligations" means (a) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged, or (b) obligations issued by a person controlled or supervised by and acting as an instrumentality of the United States of America, the payment of the principal of and premium, if any, and interest on which is fully and unconditionally guaranteed as a full faith and credit obligation by the United States of America. "Indenture" means this trust indenture and any indenture supplemental hereto. -12- "outstanding" or "Bonds outstanding" means all Bonds which have been authenticated and delivered by the Trustee under this Indenture, except: (a) Bonds cancelled after purchase or because of payment at or redemption prior to maturity; (b) Bonds for the payment or redemption of which all necessary moneys or Government Obligations shall have been theretofore deposited with the Trustee (whether upon or prior to the maturity or redemption date of any such Bonds); provided that, if such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given or arrangements satisfactory to the Trustee shall have been made therefor, or waiver of such notice satisfactory in form to the Trustee shall have been filed with the Trustee; (c) Bonds in exchange for which, or upon the transfer of which, other Bonds have been authenticated under Section 2.05 hereof; and (d) Bonds in lieu of which other Bonds have been authenticated under Sections 2.07 and 2.08 hereof. "Redemption Fund" means the trust fund created by Section 5.09 of this Indenture. "Supplemental Indenture" means the Supplemental Indenture dated as of August 15, 1994 between the Company and the First Mortgage Trustee. "Trustee" means the trustee serving as such under this Indenture, including any successor Trustee serving or appointed pursuant to Section 9.05 or 9.08 hereof. ARTICLE II THE BONDS SECTION 2.01. Authorized Amount of Bonds. No bonds may be issued under the provisions of this Indenture except in accordance with this Article II. SECTION 2.02. Issuance of Bonds. There shall be initially issued under and secured by this Indenture Bonds of the Issuer, in the aggregate principal amount of Twenty- two Million Dollars ($22,000,000), for the purposes set forth in the Agreement. Said Bonds shall be designated -13- "Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1994", shall bear interest (calculated on the basis of a year of 360 days and twelve 30-day months) at the rate of six and thirty hundredths per centum (6.30%) per annum, which interest shall be payable semi-annually on the 1st days of March and September in each year, commencing March 1, 1995, and shall mature, subject to prior redemption as hereinafter set forth, on the 1st day of September, 2024. SECTION 2.03. Form of Bonds. The definitive Bonds are issuable as fully registered Bonds without coupons in denominations of $5,000 or any multiple thereof. The definitive Bonds shall be substantially in the form hereinabove set forth, with such appropriate variations, omissions and insertions as are permitted or required by this Indenture and may have endorsed thereon such legends or text as may be necessary or appropriate to conform to any applicable rules and regulations of any governmental authority or any usage or requirement of law with respect thereto. SECTION 2.04. Details, Execution and Payment. Each Bond of each series shall be dated as of the date of authentication (except that the First Series 1994 Bonds shall be dated August 15, 1994 upon initial issuance), 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 it shall bear interest from such date of authentication, provided that Bonds of each series authenticated prior to the first interest payment date of such series shall bear interest from a date prior to such interest payment date specified for such series, which date, in the case of the First Series 1994 Bonds, shall be August 15, 1994. The Bonds shall be executed by the facsimile signature of the Chairman or Vice Chairman of the Issuer and the official seal of the Issuer or a facsimile thereof shall be affixed thereto and attested by the manual or facsimile signature of the Secretary or Assistant Secretary of the Issuer. All authorized facsimile signatures shall have the same force and effect as manual signatures. -14- In case any officer whose signature or facsimile signature shall appear on any Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes as if he had remained in office until such delivery, and also any Bond may be signed by or bear the facsimile signature of such persons as at the actual time of the execution of such Bond shall be the proper officers to sign such Bond although at the date of such Bond such persons may not have been such officers. The principal of and premium, if any, and interest on the Bonds shall be payable in any coin or currency of the United States of America which on the respective dates of payment thereof is legal tender for the payment of public and private debts. The principal of and premium, if any, on all Bonds shall be payable at the principal corporate trust office of the Trustee, and payment of the interest on each Bond shall be made by the Trustee on each interest payment date to the person appearing on the registration books of the Issuer hereinafter provided for as the owner thereof at the close of business on the record date with respect to such interest payment date, by check or draft mailed to such owner at his address as it appears on such registration books. Payment of the principal of and premium, if any, on all Bonds shall be made upon the presentation and surrender of such Bonds as the same shall become due and payable. The person in whose name any First Series 1994 Bond is registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such First Series 1994 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 there shall be a 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 First Series 1994 Bond (or any First Series 1994 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 Issuer at the direction of the Company by notice mailed to the holders of the First Series 1994 Bonds not less than ten days preceding such record date, which record date shall not be less than five nor more than thirty days prior to the subsequent interest payment date. The term "record date" as used in this -15- Section 2.04 with respect to any regular interest payment date shall mean the February 15 or August 15, as the case may be, next preceding such interest payment date, or, if such February 15 or August 15 shall be a legal holiday or a day on which banking institutions in Jacksonville, Florida 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. SECTION 2.05. Authentication, Registration, Exchange, Transfer and Ownership of Bonds. Only such of the Bonds as shall have endorsed thereon a certificate of authentication substantially in the form hereinabove set forth, duly executed by the Trustee, shall be entitled to any benefit or security under this Indenture. No Bond shall be valid or obligatory for any purpose unless and until such certificate of authentication shall have been duly executed by the Trustee, and such certificate of the Trustee upon any such Bond shall be conclusive evidence that such Bond has been duly authenticated and delivered under this Indenture. The Trustee's certificate of authentication on any Bond shall be deemed to have been duly executed if signed by an authorized representative of the Trustee, but it shall not be necessary that the same person sign the certificate of authentication on all of the Bonds that may be issued hereunder at any one time. Bonds, upon surrender thereof at the principal corporate trust office of the Trustee, may, at the option of the owner thereof, be exchanged for an equal aggregate principal amount of Bonds of the same series and maturity, of any denomination or denominations authorized by this Indenture, and bearing interest at the same rate. The Issuer shall make provision for the exchange of Bonds at the principal corporate trust office of the Trustee. The Trustee is hereby appointed as Bond Registrar and as such shall keep books for the registration and for the registration of transfer of Bonds as provided in this Indenture. The transfer of any Bond may be registered only upon the books kept for the registration and registration of transfer of Bonds upon surrender thereof to the Bond Registrar together with an assignment duly executed by the owner or his attorney or legal representative in such form as shall be satisfactory to the Bond Registrar. Upon any such registration of transfer the Issuer shall execute and the Trustee shall authenticate and deliver in exchange for -16- such Bond a new Bond or Bonds, registered in the name of the transferee, of any denomination or denominations authorized by this Indenture in an aggregate principal amount equal to the principal amount of such Bond of the same series and maturity and bearing interest at the same rate. In all cases in which Bonds shall be exchanged or the transfer of Bonds shall be registered hereunder, the Issuer shall execute and the Trustee shall authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions of this Indenture. All Bonds surrendered in any such exchange or registration of transfer shall forthwith be cancelled by the Trustee. The Issuer or the Trustee may make a charge for every such exchange or registration of transfer of Bonds sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with respect to such exchange or registration of transfer, and such charge shall be paid before any such new Bonds shall be delivered. As to any Bond, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of or interest on any such Bond shall be made only to or upon the order of the owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid. Neither the Issuer, the Trustee, the Company nor the Bond Registrar shall be affected by any notice to the contrary. SECTION 2.06. Delivery of First Series 1994 Bonds; Application of Proceeds. Upon the execution and delivery of this Indenture, the Issuer shall execute and deliver to the Trustee and the Trustee shall authenticate the First Series 1994 Bonds and deliver them to the purchasers thereof as directed by the Issuer as hereinafter in this Section 2.06 provided. Prior to the delivery by the Trustee of any First Series 1994 Bonds, there shall be delivered to the Trustee: (i) A copy, certified by the Secretary or Assistant Secretary of the Issuer, of the resolutions adopted by the Issuer authorizing the Loan, authorizing the execution and delivery of the Agreement, and authorizing the execution and delivery of this Indenture and the issuance of the First Series 1994 Bonds. -17- (ii) An executed counterpart of the Agreement. (iii) A request and authorization to the Trustee on behalf of the Issuer, signed by the Chairman or Vice Chairman of the Issuer, to authenticate and deliver the First Series 1994 Bonds to the purchasers therein identified upon payment to the Trustee, but for the account of the Issuer, of a sum specified in such request and authorization. (iv) A Note duly executed. (v) An executed counterpart of the Supplemental Indenture. (vi) First Mortgage Bonds duly executed and authenticated in accordance with Section 3.4 of the Agreement. Upon the issuance and delivery of the First Series 1994 Bonds, the Trustee shall apply the proceeds from the sale of the First Series 1994 Bonds as follows: (a) The accrued interest (if any) received from the sale of the First Series 1994 Bonds shall be deposited in the Bond Fund; and (b) The balance of such proceeds shall be deposited in the Redemption Fund. SECTION 2.07. Temporary Bonds. Until definitive Bonds are ready for delivery, there may be executed, and upon request of the Issuer the Trustee shall authenticate and deliver, in lieu of definitive Bonds and subject to the same limitations and conditions, temporary printed, engraved, lithographed or typewritten Bonds, in the form of registered Bonds without coupons in the denomination of $5,000 or any multiple thereof, as the Issuer by resolution may provide, substantially of the tenor hereinabove set forth and with such appropriate omissions, insertions and variations as may be required. Until definitive Bonds are ready for delivery, any temporary Bond may, if so provided by the Issuer by resolution, be exchanged at the principal corporate trust office of the Trustee, without charge to the holder thereof, for an equal aggregate principal amount of temporary Bonds of like tenor, of the same series and maturity and bearing interest at the same rate. -18- If temporary Bonds shall be issued, the Issuer shall cause the definitive Bonds to be prepared and to be executed and delivered to the Trustee, and the Trustee, upon presentation to it at its principal corporate trust office of any temporary Bond, shall cancel the same and authenticate and deliver in exchange therefor at the principal corporate trust office of the Trustee, without charge to the holder thereof, a definitive Bond or Bonds of an equal aggregate principal amount, of the same maturity and bearing interest at the same rate as the temporary Bond surrendered. Until so exchanged the temporary Bonds shall in all respects be entitled to the same benefit and security of this Indenture as the definitive Bonds to be issued and authenticated hereunder. SECTION 2.08. Mutilated, Destroyed or Lost Bonds. In case any Bond secured hereby shall become mutilated or be destroyed or lost, the Issuer shall cause to be executed, and the Trustee shall authenticate and deliver, a new Bond of like date and tenor in exchange and substitution for and upon the cancellation of such mutilated Bond, or in lieu of and in substitution for such Bond destroyed or lost, upon the holder's paying the reasonable expenses and charges of the Issuer and the Trustee in connection therewith and, in the case of a Bond destroyed or lost, his filing with the Trustee evidence satisfactory to it and to the Issuer that such Bond was destroyed or lost, and of his ownership thereof, and furnishing the Issuer and the Trustee indemnity satisfactory to them. SECTION 2.09. Destruction of Bonds. All Bonds paid, redeemed or purchased, either at or before maturity, shall be cancelled upon the payment, redemption or purchase of such Bonds and shall be delivered to the Trustee when such payment, redemption or purchase is made. All Bonds cancelled under any of the provisions of this Indenture shall be destroyed, in accordance with applicable law, by the Trustee, which shall execute a certificate in triplicate describing the Bonds so destroyed, and one executed certificate shall be filed with the Issuer and one with the Company and the other executed certificate shall be retained by the Trustee. SECTION 2.10. Additional Bonds. Additional Bonds may be issued under and secured by this Indenture at one time or from time to time, in addition to the First Series 1994 Bonds and, subject to the conditions hereinafter provided in this Section 2.10, for the purpose of providing funds for refunding any of the Bonds then outstanding of any series, including the payment of any redemption premium thereon, interest to accrue to the selected redemption -19- date, any serial maturities to become due prior to the selected redemption date and any expenses in connection with such refunding. Before any Additional Bonds shall be issued under the provisions of this Section 2.10, the Issuer shall adopt a resolution authorizing the issuance of such Additional Bonds, fixing the amount thereof and describing in brief and general terms the purpose or purposes for which such Additional Bonds are being issued. Such Additional Bonds shall be dated, shall be designated, shall be stated to mature on such date and in such year or years, shall bear interest at such rate or rates not exceeding the maximum rate then permitted by law, and may be made redeemable at such time and prices (subject to the provisions of Article III of this Indenture), as all may be provided by the resolution authorizing the issuance of such Additional Bonds. Except as to any difference in the date, the maturity or maturities, the rate or rates of interest or the provisions for redemption by sinking fund or otherwise, such Additional Bonds shall be on a parity with and shall be entitled to the same benefit and security of this Indenture as the First Series 1994 Bonds. Such Additional Bonds shall be executed substantially in the form and manner hereinabove set forth and shall be deposited with the Trustee for authentication, but before such Additional Bonds shall be authenticated and delivered by the Trustee, there shall be delivered to the Trustee the following: (a) a copy, certified by the Secretary or Assistant Secretary of the Issuer, of the resolution adopted by the Issuer authorizing the issuance of such Additional Bonds in the amount specified therein and providing for the application of the proceeds; (b) a certificate stating that the Company has approved the issuance of such Additional Bonds, including the terms, manner of issuance, purchase price and disposition of the proceeds thereof, and the terms and conditions of any supplement to this Indenture entered into in connection with such Additional Bonds; (c) an executed counterpart of any amendment to the Agreement; (d) an opinion of nationally recognized counsel experienced on the subject of municipal bonds and acceptable to the Trustee that the issuance of such Additional Bonds and the application of the proceeds of such Additional Bonds to the purpose or purposes described in the resolution mentioned in clause (a) of -20- this Section 2.10 will not result in the interest on any Bonds theretofore issued under this Indenture and then outstanding or any portion thereof becoming included in gross income for federal income tax purposes, except as to any such Bond held by a "substantial user" of the Project or a "related person" within the meaning of the Internal Revenue Code of 1986, as amended, and that the interest on such Additional Bonds will be so excluded from gross income for federal income tax purposes; (e) a Note duly executed; (f) First Mortgage Bonds duly executed and authenticated in accordance with Section 3.4 of the Agreement; provided, however, that if such Additional Bonds are issued for the purpose of refunding all of the Bonds then outstanding, the Company may elect not to deliver First Mortgage Bonds; and (g) if First Mortgage Bonds are to be delivered, an executed counterpart of a supplemental indenture to the First Mortgage providing for the issuance of such First Mortgage Bonds. ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY SECTION 3.01. Redemption Dates and Prices. The First Series 1994 Bonds are non-callable for redemption except as provided in this Section 3.01. The Bonds are subject to redemption by the Issuer, upon request of the Company under Section 4.7 of the Agreement, pursuant to the special redemption provisions of Section 3.06 hereof at the times specified in the notice given by the Issuer as provided in Section 3.06 hereof at the principal amount thereof plus accrued interest to the redemption date but without premium. The First Series 1994 Bonds are subject to redemption by the Issuer prior to maturity on or after September 1, 1999, in whole at any time or in part from time to time, as requested by the Company pursuant to Section 4.7 of the Agreement, at the redemption prices (expressed as percentages of principal amount) set forth in the table below plus accrued interest to the redemption date: -21- Redemption Date Redemption (dates inclusive) Price September 1, 1999 to August 31, 2000 102% September 1, 2000 to August 31, 2001 101 September 1, 2001 and thereafter 100 If less than all of the Bonds of a series shall be called for redemption, the particular Bonds or portions of Bonds to be redeemed shall be selected by the Trustee by lot or in such other random manner as the Trustee in its discretion may determine. SECTION 3.02. Notice of Redemption. At least thirty (30) days before the redemption date of any Bonds, either in whole or in part, the Trustee shall cause a notice of any such redemption to be mailed, postage prepaid, to all owners of Bonds to be redeemed in whole or in part at their addresses as they appear on the registration books hereinabove provided for. In addition, simultaneously with the mailing of such notice of redemption, the Trustee shall mail a copy of such notice by Certified Mail, return receipt requested (or transmit the same by overnight delivery service), to The Depository Trust Company, its successors or assigns and any similar institutional depository of securities which shall be the registered owner of any of the Bonds to be redeemed. Each such notice shall set forth the date fixed for redemption, the redemption price to be paid and, if less than all of the Bonds then outstanding shall be called for redemption, the distinctive numbers and letters, if any, of such Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed. In case any Bond is to be redeemed in part only, the notice of redemption which relates to such Bond shall state also that on or after the redemption date, upon surrender of such Bond, a new Bond in principal amount equal to the unredeemed portion of such Bond will be issued. Failure to mail any notice of redemption, or any defect in any such notice, shall not affect the proceeding for redemption as to any owner of Bonds to whom proper notice is mailed. SECTION 3.03. Effect of Call for Redemption. On the date so designated for redemption, notice having been given in the manner and under the conditions hereinabove provided, the Bonds or portions of Bonds so called for redemption shall become and be due and payable at the redemption price provided for redemption for such Bonds or portions of Bonds on such date, and moneys for payment of the redemption price and accrued interest to the redemption -22- date being held by the Trustee in a separate account in the Bond Fund in trust for the holders of the Bonds or portions thereof to be redeemed, all as provided in this Indenture, interest on the Bonds or portions of Bonds so called for redemption shall cease to accrue, such Bonds or portions of Bonds shall cease to be entitled to any benefit or security under this Indenture, and the holder of such Bonds or portions of Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof and accrued interest to the redemption date. SECTION 3.04. Partial Redemption. In case part but not all of an outstanding Bond shall be selected for redemption, the owner thereof or his attorney or legal representative shall present and surrender such Bond to the Trustee for payment of the principal amount thereof so called for redemption, and the Issuer shall execute and the Trustee shall authenticate and deliver to or upon the order of such owner or his attorney or legal representative, without charge therefor, for the unredeemed portion of the principal amount of the Bond so surrendered, a Bond of the same series and maturity and bearing interest at the same rate. SECTION 3.05. Funds in Trust; Unclaimed Funds. All moneys which the Trustee shall have withdrawn from the Bond Fund or shall have received from any other source and set aside, or deposited with the paying agents, for the purpose of paying any of the Bonds hereby secured, either at the maturity thereof or upon call for redemption, shall be held in trust for the respective holders of such Bonds. But any moneys which shall be so set aside or deposited by the Trustee and which shall remain unclaimed by the holders of such Bonds for a period of six (6) years after the date on which such Bonds shall have become due and payable shall upon request in writing be paid to the Company or to such officer, board or body as may then be entitled by law to receive the same, and thereafter the holders of such Bonds shall look only to the Company or to such officer, board or body, as the case may be, for payment and then only to the extent of the amount so received without any interest thereon, and the Trustee, the Issuer and the paying agents shall have no responsibility with respect to such moneys. SECTION 3.06. Special Redemption. The Bonds are subject to redemption in whole at any time upon receipt by the Trustee and the Issuer of a written notice from the Company stating that the Company has determined that: (i) Any federal, state or local body exercising governmental or judicial authority has taken any action -23- which results in the imposition of unreasonable burdens or excessive liabilities with respect to the Project, or the Company's portion of the plant in connection with which the Project is used, rendering impracticable or uneconomical the operation of either, including, without limitation, the condemnation or taking by eminent domain of all or substantially all of the Project or such portion of the plant; or (ii) Changes in the economic availability of raw materials, operating supplies or facilities or technological or other changes have made the continued operation of such plant as an efficient generating facility uneconomical; or (iii) The Project or such plant has been damaged or destroyed to such an extent that it is not practicable or desirable to rebuild, repair or restore the Project or such plant. If the Issuer shall have received such notice by the Company, the Issuer, upon request of the Company, shall give written notice to the Trustee directing the Trustee to take all action necessary to redeem the outstanding Bonds in whole and on a date specified in such notice, which date shall be not less than forty-five (45) nor more than ninety (90) days from the date the notice is received by the Trustee. SECTION 3.07. Surrender of First Mortgage Bonds. Upon receipt by the Trustee of cash or Government Obligations (non-callable by the issuer thereof) for deposit into the Bond Fund which, together with other moneys then available in the Bond Fund, are sufficient to pay, purchase or redeem all or any part of the Bonds then outstanding in accordance with the terms of this Indenture or on direction by the Company that moneys in the Bond Fund be so applied, the Trustee shall surrender to the Company First Mortgage Bonds of the series pledged hereunder in connection with the initial delivery by the Trustee of, and of the same maturity as, the Bonds so to be paid, purchased or redeemed in a principal amount equal to, but not exceeding, the principal amount of the Bonds so to be paid, purchased or redeemed. For the purposes of this Section 3.07, delivery to or acquisition by the Trustee of Bonds for cancellation (other than in connection with a permitted exchange or registration of transfer of ownership) shall be deemed to constitute receipt by the Trustee of moneys sufficient to pay, purchase or redeem the Bonds so delivered. -24- SECTION 3.08. Satisfaction of First Mortgage Bonds. The Issuer and the Trustee agree that the obligations of the Company to make payments with respect to the principal of and premium, if any, and interest on the First Mortgage Bonds pledged hereunder in connection with the initial delivery of the First Series 1994 Bonds shall be satisfied and discharged to the extent and as provided in the first paragraph of Section 2 of the Supplemental Indenture. The Trustee shall give the notice provided for in such Section within ten (10) days after a payment of principal of or premium, if any, or interest on the First Series 1994 Bonds shall not have been made when due and there are not sufficient available funds in the Bond Fund to make such payment. ARTICLE IV GENERAL COVENANTS SECTION 4.01. Payment of Principal and Premium, If Any, and Interest; Limited Obligation. The Issuer covenants that it will promptly pay the principal of and premium, if any, and interest on every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in said Bonds according to the true intent and meaning thereof, but only from the revenues and receipts specifically pledged herein for such purposes. Neither the State of Georgia, nor any political subdivision thereof (including Monroe County) shall be obligated to pay the principal of the Bonds, or the premium, if any, or interest thereon or other costs incidental thereto, the same being payable solely from the revenues and receipts hereinabove referred to. Neither the faith and credit nor the taxing power of the State of Georgia or any political subdivision thereof (including Monroe County) is pledged to the payment of the principal of the Bonds, or the premium, if any, or interest thereon, or the other costs incidental thereto. SECTION 4.02. Performance of Covenants; Issuer. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all of its proceedings pertaining hereto. The Issuer covenants that it is duly authorized under the Constitution and laws of the State of Georgia, including particularly and without limitation the Act, to issue the First Series 1994 Bonds authorized hereby and to execute this Indenture, to assign and pledge the Notes and the Agreement and the -25- amounts payable under the Notes and the First Mortgage Bonds, and to pledge the amounts hereby pledged in the manner and to the extent herein set forth; that all action on its part necessary for the issuance of the First Series 1994 Bonds and the execution and delivery of this Indenture has been duly and effectively taken; and that the First Series 1994 Bonds in the hands of the owners thereof are and will be valid and enforceable obligations of the Issuer according to the terms thereof and hereof. SECTION 4.03. Instruments of Further Assurance. The Issuer covenants that, at the direction and expense of the Company, it will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may reasonably require for the better pledging and assigning unto the Trustee all and singular the rights to payments under the Notes and the First Mortgage Bonds and any other income and other moneys pledged hereby to the payment of the principal of and premium, if any, and interest on the Bonds. The Issuer further covenants that it will not create or suffer to be created any lien, encumbrance or charge upon its interest in the Notes, the First Mortgage Bonds or the Agreement, if any, except the lien of this Indenture. SECTION 4.04. Recordation. The Issuer covenants that, at the direction and expense of the Company, it will cause all instruments as may be necessary to perfect and preserve the security interest created by this Indenture to be recorded or filed in such manner and in such places as may be required by law. SECTION 4.05. Inspection of Project Books. The Issuer covenants and agrees that all books and documents in its possession relating to the Project shall at all times be open to inspection by the Trustee and its duly authorized agents. SECTION 4.06. Rights Under Agreement. The Agreement, a duly executed counterpart of which has been filed with the Trustee, sets forth the covenants and obligations of the Issuer and the Company, and reference is hereby made to the same for a detailed statement of said covenants and obligations of the Company thereunder; and the Issuer agrees that the Trustee in its own name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Agreement for and on behalf of the Bondholders, whether or not the Issuer is in default hereunder. -26- SECTION 4.07. Designation of Additional Paying Agents. The Issuer may cause, with the consent of the Company, the necessary arrangements to be made through the Trustee and to be thereafter continued for the designation of additional paying agents and for providing for the payment of such of the Bonds as shall be presented when due at the corporate trust office of the Trustee, or its successor in trust hereunder, or at the principal office of said additional paying agents. All such funds held by said additional paying agents shall be held by each of them in trust and shall constitute a part of the trust estate and shall be subject to the security interest created hereby. SECTION 4.08. Existence of Issuer. The Issuer covenants that it will at all times maintain its corporate existence and will duly procure any necessary renewals and extensions thereof; will use its best efforts to maintain, preserve and renew all the rights, powers, privileges and franchises owned by it; and will comply with all valid acts, rules, regulations and orders of any legislative, executive, judicial or administrative body applicable to the Project. ARTICLE V REVENUES AND FUNDS SECTION 5.01. Source of Payment of Bonds. The Bonds authenticated and delivered hereunder are the obligations of the Issuer and the Issuer shall make payments hereunder in respect of the principal of and premium, if any, and interest on such Bonds. Such Bonds are not general obligations of the Issuer but are limited obligations payable solely from revenues and proceeds derived from the Notes, the Agreement and the First Mortgage Bonds and as authorized by the Act and provided herein. SECTION 5.02. Creation of Bond Fund. There is hereby created and established with the Trustee a trust fund to be designated "Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) First Series 1994 Bond Fund". Moneys deposited therein shall be used to pay the principal of and premium, if any, and interest on the Bonds as provided in this Indenture. SECTION 5.03. Payments into the Bond Fund. There shall be deposited into the Bond Fund that portion of the proceeds from the sale of the First Series 1994 Bonds consisting of accrued interest on the First Series 1994 -27- Bonds up to the date of their delivery. In addition, there shall be deposited into the Bond Fund, as and when received, (i) all repayments of the Loan and interest thereon made pursuant to the Notes; (ii) all other moneys received by the Trustee under and pursuant to any of the provisions of the Agreement or the Notes which are required, or which are accompanied by directions from the Company that such moneys are, to be paid into the Bond Fund; and (iii) all payments, if any, made to the Trustee as holder of First Mortgage Bonds. The Issuer hereby covenants and agrees that, so long as any of the First Series 1994 Bonds are outstanding, it will deposit, or cause to be paid to the Trustee for deposit in the Bond Fund for its account, sufficient sums from revenues derived pursuant to the Notes promptly to meet and pay the principal of and premium, if any, and interest on the First Series 1994 Bonds as the same become due and payable; provided, however, that nothing herein shall be construed as requiring the Issuer to use any funds or revenues from any source other than revenues derived pursuant to the Agreement, the Notes or the First Mortgage Bonds. The Trustee is authorized to receive at any time payments or prepayments from the Company pursuant to the Notes for deposit in the Bond Fund. SECTION 5.04. Use of Moneys in the Bond Fund. All interest accruing on the First Series 1994 Bonds up to the date of their initial delivery will be paid from the amounts deposited in the Bond Fund pursuant to the first sentence of Section 5.03 hereof. Except as provided in this Indenture, moneys in the Bond Fund shall be used solely for the payment of the principal of and premium, if any, and interest on the Bonds. Upon receipt of a written notice from the Company pursuant to Section 4.7 of the Agreement and, in the case of a directed purchase of Bonds, upon the deposit of cash or Government Obligations in the Bond Fund sufficient, together with other amounts available therefor in the Bond Fund, to make the directed purchase of Bonds, the Issuer and the Trustee covenant and agree to take and cause to be taken the necessary steps to redeem or purchase such principal amount of Bonds as specified by the Company in such written notice; provided, however, that any available moneys in the Bond Fund may be used on direction of the Company to redeem a part of the Bonds outstanding and then redeemable or to purchase Bonds for cancellation so long as the Company is not in default with respect to any payments required pursuant to the Notes and to the extent said moneys are in excess of the amount required for payment of the Bonds theretofore matured or called for redemption and interest accrued and payable in respect of outstanding Bonds. -28- SECTION 5.05. Custody of the Bond Fund. The Bond Fund shall be in the custody of the Trustee but in the name of the Issuer, and the Issuer hereby authorizes and directs the Trustee to withdraw sufficient funds from the Bond Fund to pay the principal of and premium, if any, and interest on the Bonds as the same become due and payable and to make said funds so withdrawn available to the paying agents hereunder at their principal office, for the purpose of paying said principal and premium, if any, and interest, which authorization and direction the Trustee hereby accepts. SECTION 5.06. Non-presentment of Bonds. In the event any Bond shall not be presented for payment when the principal thereof becomes due, either at maturity or at the date fixed for redemption thereof, if funds sufficient to pay such Bond shall have been deposited in the Bond Fund or otherwise made available to the Trustee through deposit therein as provided in Section 5.03, all liability of the Issuer to the holder thereof for the payment of such Bond shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such funds within a separate account in the Bond Fund, subject to the provisions of Section 3.05 hereof, without liability for interest thereon, for the benefit of the holder of such Bond, which shall thereafter (subject to the provisions of Section 3.05 hereof) be restricted exclusively to such funds for any claim of whatever nature on his part under this Indenture or on, or with respect to, said Bond. SECTION 5.07. Moneys to Be Held in Trust. All moneys required to be deposited with or paid to the Trustee for the account of the Bond Fund under any provision of this Indenture shall be held by the Trustee in trust, and except for moneys deposited with or paid to the Trustee for the redemption of Bonds, notice of redemption of which has been duly given, shall, while held by the Trustee, constitute part of the trust estate and be subject to the security interest created hereby. SECTION 5.08. Repayment to the Company from the Bond Fund. Any amounts remaining in the Bond Fund (other than moneys, if any, set aside as provided in Sections 3.03, 3.05, 5.06 and 7.01 hereof), after payment in full of the Bonds (or provision for payment thereof having been made in accordance with this Indenture), the fees and expenses of the Trustee and any additional paying agent and all other amounts required to be paid hereunder, shall be repaid to the Company as provided in Section 6.5 of the Agreement. -29- SECTION 5.09. Creation of Redemption Fund. There is hereby created and established with the Trustee a trust fund to be designated "Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1994 Redemption Fund". There shall be deposited in the Redemption Fund that portion of the proceeds from the sale of the First Series 1994 Bonds specified in Section 2.06 hereof. All moneys in the Redemption Fund shall, on such date or dates as may be directed by the Company (but in any event not later than 90 days after the date of the initial issuance of the First Series 1994 Bonds), be paid over to the trustee under the trust indenture pursuant to which the Refunded Bonds were issued and secured, and shall be applied to the redemption of the Refunded Bonds. ARTICLE VI INVESTMENTS SECTION 6.01. Investment of Bond Fund and Redemption Fund Moneys. Any moneys held in the Bond Fund or the Redemption Fund shall be invested and reinvested by the Trustee, at the request of, and as directed in writing by, the Company in the obligations specified in Section 6.02 hereof. Any such investments shall be held by or under the control of the Trustee and shall be deemed at all times to be a part of the Bond Fund or the Redemption Fund, as the case may be, and the interest accruing thereon and any profit realized from such investments shall be credited to the respective Fund and any loss resulting from such investments shall be charged to the respective Fund. The Trustee may make any and all investments through its own bond or securities department or the bond or securities department of any affiliate of the Trustee. The Trustee, upon direction of the Company, shall sell and reduce to cash a sufficient amount of such investments of Bond Fund moneys whenever the cash balance in the Bond Fund is insufficient to pay the principal of or premium, if any, or interest on the Bonds when due. SECTION 6.02. Permitted Investments. Except as otherwise provided herein, any moneys held in the Bond Fund or the Redemption Fund shall be invested and reinvested by the Trustee, at the request of, and as directed by, the Company, in (a) Government Obligations; (b) Bonds and notes of the Federal Land Bank; -30- (c) Obligations of the Federal Intermediate Credit Bank; (d) Obligations of the Federal Bank for Cooperatives; (e) Bonds and notes of Federal Home Loan Banks; (f) Negotiable or non-negotiable certificates of deposit, time deposits or similar banking arrangements, issued by a bank or trust company (which may be the commercial banking department of the Trustee or any bank or trust company under common control with the Trustee) or savings and loan association which are insured by the Federal Deposit Insurance Corporation or secured as to principal by Government Obligations; or (g) Other investments then permitted by law. SECTION 6.03. Non-Arbitrage Covenant. The Issuer covenants that it shall take no action nor make 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 (the "Code"), and the proposed, temporary or final regulations thereunder to the extent that the same may be applicable or proposed to be applicable to the Bonds at the time of such action, investment or use. Notwithstanding any provision of this Indenture to the contrary, the Trustee shall not be liable or responsible for any calculation or determination which may be required in connection with, or for the purpose of complying with, Section 148 of the Code, or any successor statute or any regulation, ruling or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid to the United States of America or the determination of the maximum amount which may be invested in nonpurpose obligations having a yield higher than the yield on the Bonds, and the Trustee shall not be liable or responsible for monitoring the compliance by the Issuer or the Company with any of the requirements of Section 148 of the Code or any applicable regulation, ruling or other judicial or administrative interpretation thereof; it being acknowledged and agreed that the sole obligation of the Trustee with respect to the investment of monies held under any fund or account created hereunder shall be to invest such monies in accordance with Section 6.01 hereof in each case pursuant to the instructions received by the Trustee in accordance with Section 6.01 hereof. -31- ARTICLE VII RELEASE OF LIEN SECTION 7.01. Release of Lien. If, when any of the Bonds shall have become due and payable in accordance with their terms or otherwise as provided in this Indenture or shall have been duly called for redemption or irrevocable instructions to call such Bonds for redemption shall have been given by the Issuer to the Trustee, the whole amount of the principal and the interest and the premium, if any, so due and payable upon such Bonds shall be paid or sufficient cash or Government Obligations non-callable by the issuer thereof, the principal of and the interest on which when due will provide, without investment or reinvestment, sufficient cash, shall be held by the Trustee or the paying agents for such purpose under the provisions of this Indenture, then and in that case such Bonds shall cease to be secured by the lien of this Indenture, and the Trustee in such case, on demand of the Issuer, shall release the lien of this Indenture with respect to such Bonds and shall execute such documents to evidence such release as may be reasonably required by the Issuer; provided, however, that in the event Government Obligations shall be deposited with and held by the Trustee or the paying agents as hereinabove provided, then in addition to the requirements set forth in Article III of this Indenture, the Trustee shall within thirty (30) days after such Government Obligations shall have been deposited with it cause a notice signed by it to be published once in a daily newspaper or financial journal having a general circulation in the financial community in the Borough of Manhattan, City and State of New York, setting forth (a) the date designated for the redemption of such Bonds, (b) a description of the Government Obligations so held by it and (c) that the lien of this Indenture with respect to such Bonds has been released in accordance with the provisions of this Section. All moneys and obligations held by the Trustee or the paying agents pursuant to this Section shall be held in trust and applied to the payment, when due, of the principal of, premium, if any, and interest on such Bonds. -32- ARTICLE VIII DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS SECTION 8.01. Events of Default. If any of the following events occur, it is hereby defined and declared to be and to constitute an "event of default": (a) default in the payment when due of any interest on any Bond; or (b) default in the payment when due of the principal of, or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; or (c) default in the performance or observance of any other of the covenants, agreements or conditions on the part of the Issuer in this Indenture or in the Bonds, and continuance thereof for the period after notice specified in Section 8.13 hereof; or (d) the occurrence of an "Event of Default" under Section 5.1 of the Agreement; or (e) the bonds outstanding under the First Mortgage shall have been declared due and payable prior to their stated maturities, and such acceleration shall not have been rescinded. SECTION 8.02. Acceleration. Upon the occurrence of an event of default the Trustee may, and upon the written request of the holders of not less than 25% in aggregate principal amount of Bonds then outstanding shall, by notice in writing delivered to the Issuer and the Company, declare the principal of all Bonds then outstanding and the interest accrued thereon immediately due and payable; and such principal and interest shall thereupon become and be immediately due and payable. If after the principal of the Bonds has been so declared to be due and payable, all arrears of interest and interest on overdue installments of interest (if lawful) at the rate per annum borne by the Bonds and the principal and premium, if any, on all Bonds then outstanding which shall have become due and payable otherwise than by acceleration and all other sums payable under this Indenture or upon the Bonds, except the principal of, and interest on, the Bonds which by such declaration shall have become due and payable, are paid by the Issuer, and the Issuer also -33- performs all other things in respect of which it may have been in default hereunder and pays the reasonable charges of the Trustee, the Bondholders and any trustee appointed under law, including the Trustee's reasonable attorneys' fees, then, and in every such case, the Trustee shall annul such declaration and its consequences, and such annulment shall be binding upon all holders of Bonds issued hereunder; but no such annulment shall extend to or affect any subsequent default or impair any right or remedy consequent thereon. The Trustee shall forward a copy of any such annulment notice pursuant to this paragraph to the Issuer and the Company. Immediately upon such annulment, the Trustee shall cancel, by notice to the First Mortgage Trustee, any demand made by the Trustee pursuant to the First Mortgage. SECTION 8.03. Other Remedies. If any event of default occurs and is continuing, except as otherwise provided in Section 8.12 hereof, the Trustee, before or after declaring the principal of the Bonds immediately due and payable, may enforce each and every right granted to it as the holder of First Mortgage Bonds and under the Notes and the Agreement and any supplements or amendments thereto for the benefit of the Bondholders. In exercising such rights and the rights given the Trustee under this Article VIII, the Trustee shall take such action as, in the judgment of the Trustee applying the standards described in Section 9.01(a) hereof, would best serve the interests of the Bondholders. SECTION 8.04. Legal Proceedings by Trustee. If any event of default has occurred and is continuing, the Trustee in its discretion may, and upon the written request of the holders of not less than 25% in principal amount of all Bonds then outstanding and receipt of indemnity to its satisfaction shall, in its own name: (a) by mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Bondholders, including the right to require the Issuer to enforce any rights under the Agreement and to require the Issuer to carry out any other provisions of this Indenture for the benefit of the Bondholders and to perform its duties under the Act; (b) bring suit upon the Bonds; (c) by action or suit in equity require the Issuer to account as if it were the trustee of an express trust for the Bondholders; or -34- (d) by action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Bondholders. No remedy conferred upon or reserved to the Trustee or to the Bondholders by the terms of this Indenture is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Bondholders hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default or event of default shall impair any such right or power or shall be construed to be a waiver of any such default or event of default or acquiescence therein; and every such right and power may be exercised from time to time as often as may be deemed expedient. No waiver of any default or event of default hereunder, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent default or event of default or shall impair any rights or remedies consequent thereon. SECTION 8.05. Right of Bondholders to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, the holders of a majority in aggregate principal amount of Bonds then outstanding shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided, that such direction shall not be otherwise than in accordance with the provisions of law or of this Indenture. SECTION 8.06. Appointment of Receivers. Upon the occurrence and continuance of an event of default, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Bondholders under this Indenture, the Trustee shall be entitled as a matter of right to the appointment of a receiver or receivers of the trust estate with such powers as the court making such appointment shall confer. SECTION 8.07. Waiver. Upon the occurrence and continuance of an event of default, to the extent that such rights may then lawfully be waived, neither the Issuer, nor -35- the State of Georgia, nor any political subdivision thereof, nor anyone claiming through or under any of them, shall set up, claim, or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in order to prevent or hinder the enforcement of this Indenture, but the Issuer, for itself and all who may claim through or under it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws. SECTION 8.08. Application of Moneys. All moneys received by the Trustee pursuant to any right given or action taken under the provisions of this Article VIII shall, after payment of the costs and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Trustee, be deposited in the Bond Fund and all moneys (except moneys held in separate accounts by the Trustee pursuant to Sections 3.03, 3.05 and 5.06 hereof) in the Bond Fund shall be applied as follows: (a) Unless the principal of all the Bonds shall have become or shall have been declared due and payable, all such moneys shall be applied: FIRST: To the payment to the persons entitled thereto of all installments of interest then due on the Bonds, in the order of the maturity of the installments of such interest and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimination or privilege; and SECOND: To the payment to the persons entitled thereto of the unpaid principal of and premium, if any, on any of the Bonds which shall have become due (other than Bonds matured or called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such Bonds from the respective dates upon which they became due and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the persons entitled thereto without any discrimination or privilege. -36- (b) If the principal of all the Bonds shall have become due or shall have been declared due and payable, all such moneys shall be applied to the payment of the principal and interest then due upon the Bonds, without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the persons entitled thereto without any discrimination or privilege. (c) If the principal of all the Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article VIII then, subject to the provisions of subsection (b) of this Section 8.08 in the event that the principal of all the Bonds shall later become due or be declared due and payable, the moneys shall be applied in accordance with the provisions of subsection (a) of this Section 8.08. Whenever moneys are to be applied pursuant to the provisions of this Section 8.08, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an interest payment date unless it shall deem another date more suitable) upon which such application is to be made and upon such date interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date, and shall not be required to make payment to the holder of any Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Whenever all principal of and premium, if any, and interest on all Bonds have been paid under the provisions of this Section 8.08 and all expenses and charges of the Trustee and any paying agents have been paid, any balance remaining in the Bond Fund shall be paid to the Company as provided in Section 5.08 hereof. SECTION 8.09. Remedies Vested in Trustee. All rights of action (including the right to file proof of claims) under this Indenture or under any of the Bonds may be enforced by the Trustee without the possession of any of -37- the Bonds or the production thereof in any trial or proceedings relating thereto; and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any holders of the Bonds; and any recovery of judgment shall be for the equal and ratable benefit of the holders of the outstanding Bonds. SECTION 8.10. Rights and Remedies of Bondholders. No holder of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture or for the execution of any trust hereof or for the appointment of a receiver or any other remedy hereunder, unless (i) a default has occurred of which the Trustee has been notified as provided in Section 9.01(h) hereof, or of which by said subsection it is deemed to have notice, (ii) such default shall have become an event of default and the holders of not less than 25% in aggregate principal amount of Bonds then outstanding shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, (iii) they have offered to the Trustee indemnity as provided in Section 9.01(l) hereof, and (iv) the Trustee shall thereafter fail or refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding in its own name; and such notification, request and offer of indemnity are hereby declared in every case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement of this Indenture, or for the appointment of a receiver or for any other remedy hereunder; it being understood and intended that no one or more holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by its, his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal and ratable benefit of the holders of all Bonds then outstanding. Nothing in this Indenture contained shall, however, affect or impair the right of any Bondholder to enforce the payment of the principal of and premium, if any, and interest on any Bond at and after the maturity thereof, or the obligation of the Issuer to pay the principal of and premium, if any, and interest on each of the Bonds issued hereunder to the respective holders thereof at the time and place, from the source and in the manner in the Bonds expressed. -38- SECTION 8.11. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver, or otherwise, and such proceedings shall have been continued or abandoned for any reason, or shall have been determined adversely, then and in every such case the Issuer and the Trustee shall be restored to their former positions and rights hereunder, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken. SECTION 8.12. Waivers of Events of Default. The Trustee may in its discretion waive any event of default hereunder and its consequences and rescind any declaration of maturity of principal, and shall do so upon the written request of the holders of (a) not less than two-thirds in aggregate principal amount of all the Bonds then outstanding in respect of which default in the payment of principal and/or interest exists, or (b) more than 50% in aggregate principal amount of all Bonds then outstanding in the case of any other default; provided, however, that there shall not be waived (i) any event of default in the payment of the principal of any outstanding Bonds when due or (ii) any default in the payment when due of the interest on any such Bonds unless prior to such waiver or rescission, all arrears of interest, with interest (to the extent permitted by law) at the rate borne by the Bonds in respect of which such default shall have occurred on overdue installments of interest or all arrears of payments of principal when due, as the case may be, and all expenses of the Trustee in connection with such default shall have been paid or provided for, and in case of any such waiver or rescission, or in the case any proceeding taken by the Trustee on account of any such default shall have been discontinued or abandoned or determined adversely, then and in every such case the Issuer, the Trustee and the Bondholders shall be restored to their former positions and rights hereunder respectively, but no such waiver or rescission shall extend to any subsequent or other default, or impair any right consequent thereon. SECTION 8.13. Notice of Default under Section 8.01(c); Opportunity of Issuer and the Company to Cure Such Default. Anything herein to the contrary notwithstanding, no default under Section 8.01(c) hereof shall constitute an event of default until actual notice of such default by registered or certified mail shall be given to the Issuer and the Company by the Trustee or by the holder or holders of not less than 25% in aggregate principal amount of all Bonds outstanding and the Issuer and the Company shall have had sixty days after receipt of such notice to correct said -39- default or cause said default to be corrected within the applicable period; provided, however, if said default be such that it cannot be corrected within the applicable period, it shall not constitute an event of default if corrective action is instituted by the Issuer or the Company within the applicable period and diligently pursued until the default is corrected. With regard to any alleged default concerning which notice is given to the Issuer and the Company under the provisions of this Section 8.13, the Issuer hereby grants the Company full authority for the account of the Issuer to perform any covenant or obligation alleged in said notice to constitute a default, in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts and with power of substitution. In the event that the Trustee fails to receive any payment when due under the Notes, the Trustee shall immediately give written notice to the Company specifying such failure. ARTICLE IX THE TRUSTEE SECTION 9.01. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions: (a) The Trustee, prior to the occurrence of any event of default and after the curing or waiver of all events of default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an event of default has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent corporate trustee would exercise or use under the circumstances in the enforcement of a corporate indenture. (b) The Trustee may execute any of the trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees selected by it with reasonable care and the Trustee shall not be responsible for the conduct of such -40- attorneys, agents, receivers or employees, if selected with reasonable care, and shall be entitled to advice of counsel concerning all matters relating to the trusts hereof and the duties hereunder, and may in all cases pay such reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trusts hereof. The Trustee may act upon the opinion or advice of any attorney (who may be the attorney or attorneys for the Issuer or the Company), approved by the Trustee in the exercise of reasonable care. The Trustee shall not be responsible for any loss or damage resulting from any action or inaction in good faith in reliance upon such opinion or advice. (c) The Trustee shall not be responsible for any recital herein, or in the Bonds (except in respect to the certificate of the Trustee endorsed on the Bonds), or for the recording or re-recording, filing or re-filing of this Indenture, or any other instrument required by this Indenture to secure the Bonds, or for insuring the Project or collecting any insurance moneys, or for validity of the execution by the Issuer of this Indenture or of any supplements hereto or instruments of further assurance, or for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby. (d) The Trustee shall not be accountable for the use of any Bonds authenticated or delivered hereunder. The Trustee may become the owner of Bonds secured hereby with the same rights which it would have if not the Trustee. To the extent permitted by law, the Trustee may also receive tenders and purchase in good faith Bonds from itself, including any department, affiliate or subsidiary, with like effect as if it were not the Trustee. (e) The Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the owner of any Bond, shall be conclusive and binding upon all future owners of the same Bond and upon owners of Bonds issued in exchange therefor or in place thereof. -41- (f) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate signed by the Issuer or the Company as sufficient evidence of the facts therein contained; and prior to the occurrence of a default of which the Trustee has been notified as provided in subsection (h) of this Section 9.01, or of which by said subsection it is deemed to have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or expedient, but may at its discretion secure such further evidence deemed necessary or advisable, but shall in no case be bound to secure the same. The Trustee may accept a certificate of the Secretary or Assistant Secretary of the Issuer under the Issuer's seal to the effect that a resolution in the form therein set forth has been adopted by the Issuer as conclusive evidence that such resolution has been duly adopted, and is in full force and effect. (g) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and it shall not be answerable for other than its negligence or willful default. (h) The Trustee shall not be required to take notice or be deemed to have notice of any event of default hereunder except failure by the Issuer to cause to be made any of the payments to the Trustee required to be made by Article IV hereof or the existence of an event of default described in Section 8.01(c) hereof, unless the Trustee shall be specifically notified in writing of such event of default by the Issuer or by the holders of at least 25% in aggregate principal amount of Bonds then outstanding; and all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the principal corporate trust office of the Trustee, and in the absence of such notice so delivered the Trustee may conclusively assume there is no default except as aforesaid. (i) At any and all reasonable times the Trustee and its duly authorized agents, attorneys, experts, engineers, accountants and representatives shall have the right fully to inspect any and all parts of the Project, including all books, papers and records of the Issuer pertaining to the Project and the Bonds and to -42- take such memoranda from and in regard thereto as may be desired. (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises. (k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall have the right, but shall not be required, to demand, in respect of the authentication of any Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action by the Trustee, which the Trustee in its discretion may deem desirable for the purpose of establishing the right of the Issuer to the authentication of any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee. (l) Before taking any action referred to in Section 8.02, 8.03, 8.04, 8.05, 8.06, 8.10, 8.12 or 9.04 hereunder, the Trustee may require that a satisfactory indemnity bond be furnished for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its negligence or willful default by reason of any action so taken. (m) All moneys received by the Trustee or any paying agent shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds except to the extent required herein or by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received hereunder except such as may be mutually agreed upon. SECTION 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall be entitled to payment and reimbursement for reasonable fees for its services rendered hereunder and all advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee in connection with such services. Upon an event of default, but only upon an event of default, the Trustee shall have a first lien, with right of payment prior to payment on -43- account of principal of and premium, if any, and interest on any Bond, upon the trust estate for the foregoing fees, charges and expenses incurred by it. SECTION 9.03. Notice to Bondholders if an Event of Default Occurs. If an event of default occurs of which the Trustee is by Section 9.01(h) hereof required to take notice or if notice of an event of default be given as in Section 9.01(h) provided, then the Trustee shall promptly give written notice thereof by registered or certified mail to each owner of Bonds then outstanding. SECTION 9.04. Intervention by Trustee. In any judicial proceeding to which the Issuer is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of the owners of the Bonds, the Trustee may intervene on behalf of the Bondholders and shall do so if requested in writing by the owners of at least 25% of the aggregate principal amount of Bonds then outstanding. The rights and obligations of the Trustee under this Section 9.04 are subject to the approval of a court of competent jurisdiction. SECTION 9.05. Successor Trustee. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its trust business and assets as a whole or substantially as a whole or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor Trustee hereunder and vested with all of the title to the trust estate and all the trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. SECTION 9.06. Resignation by Trustee. The Trustee and any successor Trustee may at any time resign from the trusts hereby created by giving thirty days' written notice to the Issuer and the Company, served personally or sent by registered or certified mail, and to each owner of Bonds then outstanding, sent by registered or certified mail, and such resignation shall take effect at the end of such thirty days, or upon the earlier appointment of a successor Trustee pursuant to Section 9.08 hereof. SECTION 9.07. Removal of Trustee. The Trustee may be removed at any time, by an instrument or concurrent instruments in writing delivered to the Trustee and to the -44- Issuer and the Company, and signed by the owners of a majority in aggregate principal amount of Bonds then outstanding. SECTION 9.08. Appointment of Successor Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor shall be appointed by the Issuer at the direction of the Company. The Issuer shall cause notice of such appointment to be given in the same manner as the giving of notices of redemption as set forth in Section 3.02 hereof. If the Issuer fails to make such appointment promptly, a successor may be appointed by the owners of a majority in aggregate principal amount of Bonds then outstanding. Every such successor Trustee appointed pursuant to the provisions of this Section 9.08 shall be a trust company or bank in good standing having a reported capital, surplus and undivided profits of not less than $25,000,000, if there be such an institution willing, qualified and able to accept the trusts upon reasonable and customary terms. SECTION 9.09. Concerning Any Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer an instrument in writing accepting such appointment hereunder, and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all of the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of the Issuer, or of its successor, execute and deliver an instrument transferring to such successor Trustee all the estates, properties, rights, powers and trusts of such predecessor hereunder, and every predecessor Trustee shall deliver all securities and moneys held by it as Trustee hereunder to its successor. Should any instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. The resignation of any Trustee and the instrument or instruments removing any Trustee and appointing a successor hereunder, together with all other instruments provided for in this Article IX, shall be filed and/or recorded by the successor Trustee in each recording office where the -45- Indenture shall have been filed and/or recorded and the successor Trustee shall bear the cost thereof. SECTION 9.10. Successor Trustee as Bond Registrar, Custodian of Bond Fund and Paying Agent. In the event of a change of Trustee, the Trustee which has resigned or been removed shall cease to be Bond Registrar, custodian of the Bond Fund and a paying agent for principal of and premium, if any, and interest on the Bonds, and the successor Trustee shall become such Bond Registrar, custodian and a paying agent. SECTION 9.11. Trustee and Issuer Required to Accept Directions and Actions of Company. Whenever, after a reasonable request by the Company, the Issuer shall fail, refuse or neglect to give any direction to the Trustee or to require the Trustee to take any action which the Issuer is required to have the Trustee take pursuant to the provisions of the Agreement or this Indenture, the Company as agent of the Issuer may give any such direction to the Trustee or require the Trustee to take any such action, and the Trustee is hereby irrevocably empowered and directed to accept such direction from the Company as sufficient for all purposes of this Indenture. The Company shall have the right as agent of the Issuer to cause the Trustee to comply with any of the Trustee's obligations under this Indenture to the same extent that the Issuer is empowered so to do. Certain actions or failures to act by the Issuer under this Indenture may create or result in an event of default under this Indenture and the Company, as agent of the Issuer, may to the extent permitted by law, perform any and all acts or take such action as may be necessary for and on behalf of the Issuer to prevent or correct said event of default and the Trustee shall take or accept such performance by the Company as performance by the Issuer in such event. The Issuer hereby makes, constitutes and appoints the Company irrevocably as its agent to give all directions, do all things and perform all acts provided, and to the extent so provided, by this Section 9.11. SECTION 9.12. No Transfer of Notes or First Mortgage Bonds Held by the Trustee; Exception. Except as required to effect an assignment to a successor Trustee, the Trustee shall not sell, assign or transfer Notes or First Mortgage Bonds, and the Trustee is authorized to enter into an agreement with the Company to such effect, including a consent to the issuance of stop transfer instructions to the First Mortgage Trustee. -46- SECTION 9.13. Filing of Certain Continuation Statements. From time to time, the Trustee shall duly file, or cause to be filed, at the expense of the Company, continuation statements for the purpose of continuing without lapse the effectiveness of the filing of the financing statements with respect to the security interest created by this Indenture in the Agreement, the Notes and the First Mortgage Bonds, at or prior to the issuance of the First Series 1994 Bonds and any Additional Bonds and any previously filed continuation statements which shall have been filed as herein required. The Issuer shall sign and deliver to the Trustee or its designee such continuation statements as may be requested of it from time to time by the Trustee. Upon the filing of any such continuation statements the Trustee shall immediately notify the Issuer and the Company that the same has been accomplished. SECTION 9.14. Voting of First Mortgage Bonds Held by the Trustee. The Trustee, as a holder of First Mortgage Bonds, shall attend any meeting of bondholders under the First Mortgage as to which it receives due notice. Either at such meeting, or otherwise where consent of holders of first mortgage bonds of the Company is sought without a meeting, the Trustee shall vote as such holder, or shall consent with respect thereto, proportionately with what the Trustee reasonably believes will be the vote or consent of all other first mortgage bonds of the Company then outstanding and eligible to vote or consent. Notwithstanding the foregoing, the Trustee shall not vote as such holder in favor of, or give its consent to, any action which, in the Trustee's opinion, would materially adversely affect the interests of the Bondholders, except upon notification by the Trustee to the Bondholders of such proposal and consent thereto of the holders of at least 50% in aggregate principal amount of the Bonds then outstanding and, if such action would also affect one or more but less than all series of Bonds, the consent thereto of the holders of at least 50% in aggregate principal amount of all the outstanding Bonds of such series so affected and, if such proposal would so affect the rights of some but less than all the outstanding Bonds of any one series, the consent thereto of the holders of at least 50% in aggregate principal amount of the Bonds so affected. -47- ARTICLE X INDENTURES SUPPLEMENTAL HERETO SECTION 10.01. Supplemental Indentures Not Requiring Consent of Bondholders. The Issuer and the Trustee may, without the consent of, or notice to, any of the Bondholders, enter into such indenture or indentures supplemental to this Indenture as shall not be inconsistent with the terms and provisions hereof for any one or more of the following purposes: (a) to set forth any or all of the matters in connection with the issuance of Additional Bonds as provided in Section 2.10 hereof; (b) to cure any ambiguity, defect or omission in this Indenture, or to otherwise amend this Indenture, in such manner as shall not in the opinion of the Trustee impair the security hereof or adversely affect the Bondholders; (c) to grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers or authorities that may lawfully be granted or conferred upon the Bondholders or the Trustee; (d) to add additional covenants of the Issuer, or to surrender any right or power herein conferred upon the Issuer; (e) to subject to this Indenture additional revenues, properties or collateral; (f) to modify, amend or supplement this Indenture or any indenture supplemental hereto in such manner as to permit the qualification hereof and thereof under the Trust Indenture Act of 1939 or any similar federal statute hereafter in effect or to permit the qualification of the Bonds for sale under the securities laws of any of the states of the United States, and, if they so determine, to add to this Indenture or any indenture supplemental hereto such other terms, conditions and provisions as may be permitted by said Trust Indenture Act of 1939 or similar federal statute; (g) to evidence the succession of a new Trustee hereunder; and -48- (h) to authorize different authorized denominations of the Bonds and to make correlative amendments and modifications to this Indenture regarding exchangeability of Bonds of different authorized denominations, redemptions of portions of Bonds of particular authorized denominations and similar amendments and modifications of a technical nature. SECTION 10.02. Supplemental Indentures Requiring Consent of Bondholders. Exclusive of supplemental indentures covered by Section 10.01 hereof and subject to the terms and provisions contained in this Section 10.02, and not otherwise, the holders of not less than 50% in aggregate principal amount of the Bonds then outstanding shall have the right, from time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the execution by the Issuer and the Trustee of such other indenture or indentures supplemental hereto as shall be deemed necessary and desirable by the Trustee for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any indenture supplemental hereto; provided, however, that nothing in this Section 10.02 contained shall permit, or be construed as permitting (i) an extension of the maturity or mandatory sinking fund redemption dates of the principal of or the interest on any Bond issued hereunder, or (ii) a reduction in the principal amount of, or redemption premium on, any Bond or Bonds or the rate or rates of interest thereon, or (iii) a privilege or priority of any outstanding Bond or Bonds over any other outstanding Bond or Bonds, or (iv) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental indenture. If at any time the Issuer shall request the Trustee to enter into any such supplemental indenture for any of the purposes of this Section 10.02, the Trustee shall, upon being satisfactorily indemnified with respect to expenses, cause notice of the proposed execution of such supplemental indenture to be given in the same manner as the giving of notices of redemption as set forth in Section 3.02 hereof. Such notice shall briefly set forth the nature of the proposed supplemental indenture and shall state that copies thereof are on file at the principal corporate trust office of the Trustee for inspection by all Bondholders. If, within sixty days or such longer period as shall be prescribed by the Issuer following the giving of such notice, the holders of not less than 50% in aggregate principal amount of the Bonds outstanding at the time of -49- the execution of any such supplemental indenture shall have consented to and approved the execution thereof as herein provided, no holder of any Bond shall have any right to object to any of the terms and provisions contained therein, or the operation thereof, or in any manner to question the propriety of the execution thereof, or to enjoin or restrain the Trustee or the Issuer from executing the same or from taking any action pursuant to the provisions thereof. Upon the execution of any such supplemental indenture as in this Section 10.02 permitted and provided, this Indenture shall be and be deemed to be modified and amended in accordance therewith and without the necessity for notation on the outstanding Bonds. Anything herein to the contrary notwithstanding, a supplemental indenture under this Article X which affects the rights of the Company shall not become effective unless and until the Company shall have consented to the execution and delivery of such supplemental indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery of any such supplemental indenture together with a copy of the proposed supplemental indenture to be mailed by certified or registered mail to the Company at least fifteen days prior to the giving of notice of the proposed execution of such supplemental indenture as provided in this Section 10.02. The Company shall be deemed to have consented to the execution and delivery of any such supplemental indenture if the Trustee does not receive a letter of protest or objection thereto signed by or on behalf of the Company on or before 4:30 P.M., local time, on the fifteenth day after the Company's receipt of said notice and a copy of the proposed supplemental indenture. SECTION 10.03. Trustee Authorized to Join in Supplements; Reliance on Counsel. The Trustee is authorized to join with the Issuer in the execution and delivery of any supplemental indenture permitted by this Article X and in so doing shall be fully protected by an opinion of counsel, who may be counsel for the Issuer or the Company, that such supplemental indenture is so permitted and has been duly authorized by the Issuer and that all things necessary to make it a valid and binding supplemental indenture have been done. -50- ARTICLE XI AMENDMENT OF AGREEMENT SECTION 11.01. Amendments, Etc., to Agreement Not Requiring Consent of Bondholders. The Issuer and the Trustee shall, without the consent of or notice to the Bondholders, consent to any amendment, change or modification of the Agreement which may be entered into pursuant to Section 2.10 hereof or as may be required (i) by the provisions of the Agreement or this Indenture, (ii) for the purpose of curing any ambiguity or formal defect or omission, (iii) in connection with the Project facilities so as to identify the same more precisely or substitute or add additional facilities, or (iv) in connection with any other change therein which, in the judgment of the Trustee, is not to the prejudice of the Trustee or the Bondholders. SECTION 11.02. Amendments, Etc., to Agreement Requiring Consent of Bondholders. Except for the amendments, changes or modifications as provided in Section 11.01 hereof, neither the Issuer nor the Trustee shall consent to any other amendment, change or modification of the Agreement or the terms of the Notes without the giving of notice and the written approval or consent of the holders of not less than 50% in aggregate principal amount of the Bonds at the time outstanding given and procured as in this Section 11.02 provided. If at any time the Issuer and the Company shall request the consent of the Trustee to any such proposed amendment, change or modification of the Agreement or the terms of the Notes, the Trustee shall, upon being satisfactorily indemnified with respect to expenses, cause notice of such proposed amendment, change or modification to be given in the same manner as provided by Section 10.02 hereof with respect to supplemental indentures. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that copies of the instrument embodying the same are on file with the Trustee for inspection by all Bondholders. SECTION 11.03. Trustee Authorized to Join in Amendments; Reliance on Counsel. The Trustee is authorized to join with the Issuer in the execution and delivery of any amendment permitted by this Article XI and in so doing shall be fully protected by an opinion of counsel, who may be counsel for the Issuer or the Company, that such amendment is so permitted and has been duly authorized by the Issuer and that all things necessary to make it a valid and binding agreement have been done. -51- ARTICLE XII MISCELLANEOUS SECTION 12.01. Consents, Etc., of Bondholders. Any consent, request, direction, approval, objection or other instrument required by this Indenture to be signed and executed by the Bondholders may be in any number of concurrent writings of similar tenor and may be signed or executed by such Bondholders in person or by agent appointed in writing. Proof of the execution of any such consent, request, direction, approval, objection or other instrument or of the writing appointing any such agent, if made in the following manner, shall be sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken by it under such request or other instrument, namely: The fact and date of the execution by any person of any such writing may be proved by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such writing acknowledged before him the execution thereof, or by an affidavit of any witness to such execution. SECTION 12.02. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be inferred from this Indenture, or the Bonds, is intended or shall be construed to give to any person or company other than the Company, the parties hereto, and the holders of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenants, conditions and provisions herein contained; this Indenture and all of the covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the Company, the parties hereto and the holders of the Bonds as herein provided. SECTION 12.03. Severability. If any provision of this Indenture shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative or unenforceable to any extent whatever. SECTION 12.04. Notices. Any notice, request, complaint, demand, communication or other paper shall be sufficiently given and shall be deemed given when delivered -52- or mailed by registered or certified mail, postage prepaid, or sent by telegram, addressed as follows: if to the Issuer, c/o Board of Commissioners of Monroe County, Forsyth, Georgia 31029, Attention: Chairman; if to the Trustee, at 214 Hogan Street, 2nd Floor, Jacksonville, Florida 32202, Attention: Corporate Trust Department; if to the Company, at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention: Treasurer, with copies to Southern Company Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346, Attention: Corporate Finance Department; and if to the First Mortgage Trustee, to The Chase Manhattan Bank, N.A., 4 Chase MetroTech Center, Brooklyn, New York 11245, Attention: Corporate Trust Department. A duplicate copy of each notice required to be given hereunder by either the Issuer or the Trustee shall also be given to the Company, and a duplicate copy of each notice required to be given hereunder by the Trustee to either the Issuer or the Company shall also be given to the other. The Issuer, the Company, the Trustee and the First Mortgage Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. SECTION 12.05. Trustee as Paying Agent and Bond Registrar. The Trustee is hereby designated and agrees to act as a paying agent and Bond Registrar for and in respect of the Bonds. SECTION 12.06. Payments Due on Saturdays, Sundays and Holidays. In any case where the date of maturity of interest on or principal of the Bonds or the date fixed for redemption of any Bonds shall be in the city of payment a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then payment of interest or principal and premium, if any, need not be made on such date but may be made on the next succeeding business day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest on such payment shall accrue for the period after such date. SECTION 12.07. Counterparts. This Indenture 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 12.08. Applicable Provisions of Law. This Indenture shall be governed by and construed in accordance with the laws of the State of Georgia. -53- SECTION 12.09. Captions. The captions or headings in this Indenture are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Indenture. SECTION 12.10. No Liability of Officers. No covenant or agreement contained in the Bonds or this Indenture shall be deemed to be a covenant or agreement of any commissioner, agent or employee of the Issuer in his individual capacity, and neither the officers of the Issuer nor any official executing the Bonds or this Indenture shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds or the execution and delivery of this Indenture. -54- IN WITNESS WHEREOF, the Development Authority of Monroe County has caused these presents to be signed in its name and behalf and its official seal to be hereunto affixed and attested by its duly authorized officers, and to evidence its acceptance of the trusts hereby created First Union National Bank of Florida, as Trustee, has caused these presents to be signed in its name and behalf and its official seal to be hereunto affixed and attested by its duly authorized officers, all as of the day and year first above written. DEVELOPMENT AUTHORITY OF MONROE COUNTY By: /s/James A. Vaughan Chairman Attest: /s/Marvin T. Carr, Jr. Secretary FIRST UNION NATIONAL BANK OF FLORIDA, as Trustee By: /s/Donna M. Fay Title: Assistant Vice President Attest: /s/Janalee R. Scott Title: Vice President EX-99.D 5 EXHIBIT D DEVELOPMENT AUTHORITY OF MONROE COUNTY to FIRST UNION NATIONAL BANK OF FLORIDA, as Trustee TRUST INDENTURE Dated as of September 1, 1994 Relating to $20,000,000 Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) Second Series 1994 TABLE OF CONTENTS ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.01. Definitions . . . . . . . . . . . . . . . 3 Section 1.02. Rules of Construction . . . . . . . . . . 7 ARTICLE II THE BONDS Section 2.01. Issuance of Bonds; Form; Dating . . . . . 8 Section 2.02. Interest on the Bonds . . . . . . . . . . 8 Section 2.03. Execution and Authentication . . . . . . 16 Section 2.04. Bond Register . . . . . . . . . . . . . . 17 Section 2.05. Registration and Exchange of Bonds; Persons Treated as Owners . . . . . . . 17 Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds . . . . . . . . . . . . 17 Section 2.07. Cancellation of Bonds . . . . . . . . . . 18 Section 2.08. Temporary Bonds . . . . . . . . . . . . . 18 ARTICLE III REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING Section 3.01. Notices to Trustee . . . . . . . . . . . 19 Section 3.02. Redemption Dates . . . . . . . . . . . . 19 Section 3.03. Selection of Bonds to Be Redeemed . . . . 19 Section 3.04. Redemption Notices . . . . . . . . . . . 19 Section 3.05. Payment of Bonds Called for Redemption . 21 Section 3.06. Bonds Redeemed in Part . . . . . . . . . 21 Section 3.07. Purchase of Bonds in Lieu of Redemption . 21 Section 3.08. Disposition of Purchased Bonds . . . . . 22 ARTICLE IV APPLICATION OF PROCEEDS AND PAYMENT OF BONDS Section 4.01. Application of Proceeds . . . . . . . . . 24 Section 4.02. Payment of Bonds . . . . . . . . . . . . 24 Section 4.03. Investments of Moneys . . . . . . . . . . 25 Section 4.04. Moneys Held in Trust; Unclaimed Funds . . 25 i ARTICLE V BOOK-ENTRY SYSTEM Section 5.01. Book-Entry System . . . . . . . . . . . . 26 ARTICLE VI COVENANTS Section 6.01. Payment of Bonds . . . . . . . . . . . . 28 Section 6.02. Performance of Covenants; Issuer . . . . 28 Section 6.03. Recording and Filing; Further Assurances . . . . . . . . . . . . . . . 29 Section 6.04. Tax Covenants . . . . . . . . . . . . . . 29 Section 6.05. Rights Under Agreement . . . . . . . . . 29 Section 6.06. Designation of Additional Paying Agents . 30 Section 6.07. Existence of Issuer . . . . . . . . . . . 30 ARTICLE VII DISCHARGE OF INDENTURE Section 7.01. Bonds Deemed Paid; Discharge of Indenture . . . . . . . . . . . . . . . . 30 Section 7.02. Application of Trust Money . . . . . . . 31 Section 7.03. Repayment to Company . . . . . . . . . . 31 ARTICLE VIII DEFAULTS AND REMEDIES Section 8.01. Events of Default . . . . . . . . . . . . 32 Section 8.02. Acceleration . . . . . . . . . . . . . . 32 Section 8.03. Other Remedies . . . . . . . . . . . . . 33 Section 8.04. Legal Proceeding by Trustee . . . . . . . 33 Section 8.05. Appointment of Receivers . . . . . . . . 34 Section 8.06. Waiver of Past Defaults . . . . . . . . . 34 Section 8.07. Control by Majority . . . . . . . . . . . 34 Section 8.08. Limitation on Suits . . . . . . . . . . . 35 Section 8.09. Rights of Holders to Receive Payment . . 35 Section 8.10. Collection Suit by Trustee . . . . . . . 35 Section 8.11. Trustee May File Proofs of Claim . . . . 35 Section 8.12. Priorities . . . . . . . . . . . . . . . 36 Section 8.13. Undertaking for Costs . . . . . . . . . . 36 ii ARTICLE IX TRUSTEE AND REMARKETING AGENT Section 9.01. Acceptance of the Trusts . . . . . . . . 36 Section 9.02. Fees, Charges and Expenses of Trustee . . . . . . . . . . . . . . . . 39 Section 9.03. Notice to Bondholders if an Event of Default Occurs . . . . . . . . . . . . . 40 Section 9.04. Intervention by Trustee . . . . . . . . . 40 Section 9.05. Successor Trustee . . . . . . . . . . . . 40 Section 9.06. Resignation by Trustee . . . . . . . . . 40 Section 9.07. Removal of Trustee . . . . . . . . . . . 41 Section 9.08. Appointment of Successor Trustee . . . . 41 Section 9.09. Concerning Any Successor Trustee . . . . 41 Section 9.10. Successor Trustee as Bond Registrar and Paying Agent . . . . . . . 42 Section 9.11. Trustee and Issuer Required to Accept Directions and Actions of Company . . . 42 Section 9.12. No Transfer of Note or First Mortgage Bonds Held by the Trustee; Exception . . 42 Section 9.13. Filing of Certain Continuation Statements . . . . . . . . . . . . . . . 42 Section 9.14 Duties of Remarketing Agent . . . . . . . 43 Section 9.15 Eligibility of Remarketing Agent . . . . 43 Section 9.16 Replacement of Remarketing Agent . . . . 43 Section 9.17. Compensation of Remarketing Agent . . . . 43 Section 9.18. Successor Remarketing Agent . . . . . . . 44 ARTICLE X AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE Section 10.01. Without Consent of Bondholders . . . . . 44 Section 10.02. With Consent of Bondholders . . . . . . . 45 Section 10.03. Effect of Consents . . . . . . . . . . . 45 Section 10.04. Notation on or Exchange of Bonds . . . . 45 Section 10.05. Signing by Trustee of Amendments and Supplements . . . . . . . . . . . . . . 46 Section 10.06. Company Consent Required . . . . . . . . 46 Section 10.07. Notice to Bondholders . . . . . . . . . . 46 ARTICLE XI AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT, OR FIRST MORTGAGE BOND Section 11.01. Without Consent of Bondholders . . . . . 46 Section 11.02. With Consent of Bondholders . . . . . . . 46 iii Section 11.03. Consents by Trustee to Amendments or Supplements . . . . . . . . . . . . . . 47 ARTICLE XII VOTING OF FIRST MORTGAGE BOND Section 12.01. Voting of Mortgage Bond Held by the Trustee . . . . . . . . . . . . . . . . . 47 ARTICLE XIII MISCELLANEOUS Section 13.01. Notices . . . . . . . . . . . . . . . . . 48 Section 13.02. Bondholders' Consents . . . . . . . . . . 48 Section 13.03. Appointment of Separate Paying Agent and/or Tender Agent . . . . . . . . . . 49 Section 13.04. Limitation of Rights . . . . . . . . . . 49 Section 13.05. Severability . . . . . . . . . . . . . . 49 Section 13.06. Payments Due on Non-Business Days . . . . 49 Section 13.07. Governing Law . . . . . . . . . . . . . . 49 Section 13.08. Captions . . . . . . . . . . . . . . . . 50 Section 13.09. No Liability of Officers . . . . . . . . 50 Section 13.10. Counterparts . . . . . . . . . . . . . . 50 Signature . . . . . . . . . . . . . . . . . . . . . . . . . . 51 EXHIBIT A . . . . . . . . . . . . . . . . . . . . . Form of Bond iv TRUST INDENTURE THIS INDENTURE made and entered into as of September 1, 1994, by and 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 FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association duly organized, existing and authorized to accept and execute trusts of the character herein set out under and by virtue of the laws of the United States of America, with its principal corporate trust office located in Jacksonville, Florida, as Trustee (the "Trustee"). RECITALS A. In furtherance of its statutory purposes, the Issuer has entered into a Loan Agreement dated as of September 1, 1994 (the "Agreement") with Gulf Power Company (the "Company") providing for the undertaking by the Issuer to loan amounts to the Company in order to refund certain of the Issuer's bonds heretofore issued to finance the acquisition, construction, installation and equipping of the Company's interest in certain air and water pollution control and sewage and solid waste disposal facilities, or portions thereof, at Plant Scherer, in Monroe County, Georgia (the "Project"). B. The Agreement provides that, for the purposes therein set forth, the Issuer will issue and sell its Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), Second Series 1994, in the aggregate principal amount of $20,000,000 (the "Bonds"); that the Issuer will loan the proceeds of the Bonds to the Company; that to evidence the Loan (as hereinafter defined) the Company will execute and deliver, concurrently with the issuance of the Bonds, a non-negotiable promissory note in a like principal amount bearing interest at the rate or rates borne by the Bonds; and that as security for its obligation to pay the promissory note the Company will deliver to the Trustee, concurrently with the issuance of the Bonds, first mortgage bonds issued under and secured by the Company Indenture (as hereinafter defined) in accordance with Section 3.4 of the Agreement. C. The execution and delivery of this Indenture (as hereinafter defined) and the Agreement and the issuance and sale of the Bonds have been in all respects duly and validly authorized by resolution duly adopted by the Issuer. D. The Company has agreed to make payments on the aforementioned promissory note to the Issuer in amounts sufficient to pay the principal, purchase price, premium, if any, and interest on the Bonds, all as hereinafter defined. E. The Trustee has accepted the trusts created by this Indenture and in evidence thereof has joined in the execution hereof. Accordingly, the Issuer and the Trustee agree as follows for the benefit of each other and for the benefit of the holders of the Bonds issued pursuant to this Indenture. GRANTING CLAUSE NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in consideration of the premises, of the acceptance by the Trustee of the trusts hereby created, and the purchase and acceptance of the Bonds by the holders thereof, and also for and in consideration of the sum of One Dollar ($1.00) to the Issuer in hand paid by the Trustee at or before the execution and delivery of this Indenture, the receipt of which is hereby acknowledged, and for the purpose of fixing and declaring the terms and conditions upon which the Bonds are to be issued, authenticated, delivered, secured and accepted by all persons who shall from time to time be or become holders thereof, and in order to secure the payment of all Bonds at any time issued and outstanding hereunder and the interest and the redemption premiums, if any, thereon according to their tenor, purport and effect, and in order to secure the performance and observance of all the covenants, agreements and conditions therein or herein contained; the Issuer has executed and delivered this Indenture, will cause the Company to deliver to the Trustee the Company's promissory note dated the date of the initial issuance of the Bonds and the Company's First Mortgage Bonds, Second Pollution Control Series due September 1, 2024; the Issuer does hereby bargain, sell, convey, assign and pledge to the Trustee, and grant to the Trustee a security interest in, all rights, title and interests of the Issuer in, to and under such promissory note and all payments made and to be made thereunder and in, to and under such First Mortgage Bonds and all payments, if any, made and to be made thereunder as security for the payment of all outstanding Bonds and the interest and the premium, if any, thereon and does hereby bargain, sell, convey, assign and pledge to the Trustee, and grant to the Trustee a security interest in, all other rights, title and interests of the Issuer in, to and under the Agreement and all moneys receivable thereunder (except for Unassigned Rights, as defined herein) as security for the satisfaction of any other obligation assumed by it in connection with all outstanding Bonds at any time issued hereunder; TO HAVE AND TO HOLD the same unto the Trustee and its successors in trust forever; IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for the equal and proportionate benefit and security of all and singular present and future holders of the Bonds issued 2 under this Indenture, without preference, priority or distinction as to lien or otherwise, except as otherwise hereinafter provided, of any one Bond over any other Bond, by reason of priority in the issue, sale or negotiation thereof or otherwise; PROVIDED, HOWEVER, that if the Issuer, its successors or assigns shall pay or cause to be paid the principal of, premium, if any, and interest on the Bonds due or to become due thereon, at the times and in the manner mentioned in the Bonds, and shall perform all the covenants and conditions required of it by this Indenture, and shall pay or cause to be paid to the Trustee and any additional paying agents all sums of money due or to become due to them in accordance with the terms and provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall terminate and the Trustee shall release this Indenture and shall execute such documents to evidence such termination and release as may be reasonably required by the Issuer; otherwise this Indenture to be and remain in full force and effect. THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all Bonds from time to time issued and secured hereunder are to be issued, authenticated and delivered, and all said property, rights and interests, including, without limitation, the amounts hereby assigned and pledged, are to be dealt with and disposed of subject to the terms of this Indenture, and the Issuer agrees with the Trustee and with the respective owners, from time to time, of said Bonds, or part thereof, as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.01. Definitions. For all purposes of this Inden- ture, unless the context requires otherwise, the following terms shall have the following meanings: "Act" means the Development Authorities Law as set forth in O.C.G.A. Section 36-62-1, et seq., as amended. "Agreement" means the Loan Agreement dated as of September 1, 1994, between the Issuer and the Company, as amended and supplemented from time to time. "Beneficial Owner" means the purchaser of a beneficial interest in the Bonds when the Bonds are held by the Securities Depository in the Book-Entry System, and otherwise means a Bondholder. 3 "Bondholder" or "holder" means the registered owner of any Bond. "Bonds" means the Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), Second Series 1994 issued by the Issuer hereunder in the aggregate principal amount of $20,000,000. "Book-Entry System" means the system maintained by the Securities Depository described in Section 5.01. "Business Day" means any day other than (i) a Saturday or Sunday, (ii) a day on which commercial banks in New York, New York, Atlanta, Georgia, or the city in which the principal corporate trust office of the Trustee is located, are authorized by law to close or (iii) a day on which the New York Stock Exchange is closed. "Code" means the Internal Revenue Code of 1986, as amended, and the Treasury regulations thereunder. "Commercial Paper Mode" means each period of time, comprised of Commercial Paper Periods, during which Commercial Paper Rates are in effect. "Commercial Paper Period" means, with respect to any Bond, each period set under Section 2.02(a)(3). "Commercial Paper Rate" means the interest rate on each Bond set under Section 2.02(a)(3). "Company" means Gulf Power Company, a Maine corporation, and its successors and assigns, and any surviving, resulting or transferee entity as provided in Section 4.3 of the Agreement. "Company Indenture" means the Indenture dated as of September 1, 1941 between the Company and The Chase Manhattan Bank (National Association), as trustee, as amended and supplemented from time to time. "Credit Agreement" means the Revolving Credit and Term Loan Letter dated as of September 28, 1994, between the Company and The Bank of New York, arranged by the Company pursuant to the provisions of Section 3.6 of the Agreement, or any line of credit or similar facility or facilities that the Company may enter into in substitution or replacement of such Revolving Credit Letter from time to time and that expressly provides that funds obtained thereunder may be used only to pay the purchase price (including accrued interest, if any) of Bonds. "Daily Rate" means an interest rate on the Bonds set under Section 2.02(a)(l). 4 "Event of Default" is defined in Section 8.01. "Favorable Opinion of Tax Counsel" means an Opinion of Tax Counsel addressed to the Issuer and to the Trustee to the effect that the action proposed to be taken is permitted by the laws of the State and by this Indenture and will not adversely affect any exclusion from gross income for federal income tax purposes of interest on the Bonds. "First Mortgage Bonds" means the First Mortgage Bonds, Second Pollution Control Series due September 1, 2024 of the Company issued by the Company under the Company Indenture pursuant to Section 3.4 of the Agreement. "Government Obligations" means (i) noncallable direct obligations of the United States for which its full faith and credit are pledged, (ii) noncallable obligations of a Person controlled or supervised by and acting as an agency or instrumen- tality of the United States, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States, or (iii) securities or receipts evidencing ownership interests in obligations or specified portions (such as principal or interest) of obligations described in (i) or (ii). "Indenture" means this Trust Indenture, as it may be amended or supplemented from time to time in accordance with its terms. "Interest Payment Date" is defined in the form of the Bonds appearing in Exhibit A hereto. "Interest Period" is defined in the form of the Bonds appearing in Exhibit A hereto. "J.J. Kenny Index" means, as of any date, the index of 7-day yields on high grade tax exempt municipal bonds as determined by J.J. Kenny Co., Inc. or any successor thereto and published on such date (or, if not published on said date, on the most recent day prior thereto on which such index shall have been so published). "Long-Term Interest Rate" means an interest rate on the Bonds set under Section 2.02(a)(4). "Long-Term Interest Rate Period" is defined in Section 2.02(a)(4). "Maturity Date" means the stated maturity for the Bonds as set forth in Section 2.01. "Mortgage Trustee" means the trustee or trustees at the time serving as such under the Company Indenture. 5 "1954 Code" means the Internal Revenue Code of 1954, as amended, and the Treasury regulations thereunder. "Note" means the promissory note executed and delivered by the Company concurrently with the issuance of the Bonds in a like principal amount bearing interest at the rate or rates borne by the Bonds. "Opinion of Counsel" means a written opinion of counsel who is acceptable to the Issuer and the Trustee. Such counsel may be an employee of or counsel to the Issuer, the Trustee or the Company. "Opinion of Tax Counsel" means an Opinion of Counsel by counsel of nationally recognized standing in matters relating to the exclusion of interest from gross income on obligations issued by or on behalf of states and their political subdivisions. The term "outstanding" when used with reference to Bonds, or "Bonds outstanding" means all Bonds which have been authenticated and delivered by the Trustee under this Indenture, except the following: a. Bonds canceled or purchased by or delivered to the Trustee for cancellation. b. Bonds that have become due (at maturity or on redemption, acceleration or otherwise) and for the payment, including interest accrued to the due date, of which sufficient moneys are held by the Trustee. c. Bonds deemed paid by Section 7.01. d. Bonds in lieu of which others have been authenticated under Section 2.05 (relating to registration and exchange of Bonds) or Section 2.06 (relating to mutilated, lost, stolen, destroyed or undelivered Bonds). Bonds purchased pursuant to tenders or in lieu of redemption and not delivered to the Trustee for payment are not outstanding, but there will be outstanding Bonds authenticated and delivered in lieu of such undelivered Bonds as provided in the second paragraph of Section 2.06. "Participant" means one of the entities which deposit securities, directly or indirectly, in the Book-Entry System. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof. 6 "Plant" means the Scherer steam electric generating plant located in Monroe County, Georgia. The term "principal," when used with reference to any Bonds, includes any premium payable on those Bonds. "Prior Indenture" means the Trust Indenture dated as of December 1, 1984 between the Issuer and the Refunded Bonds Trustee, under which the Refunded Bonds were issued. "Project" means the air and water pollution control and sewage and solid waste disposal facilities at the Plant financed from the proceeds of the Refunded Bonds. "Record Date" is defined in the form of the Bonds appearing as Exhibit A hereto. "Refunded Bonds" means the Issuer's Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), First Series 1984, in the aggregate principal amount of $20,000,000 being refunded by the Bonds. "Refunded Bonds Trustee" means First Union National Bank of Florida, in its capacity as trustee for the Refunded Bonds. "Remarketing Agent" means Lehman Brothers Inc. and its successors under this Indenture. "Responsible Officer" means any officer or trust officer of the Trustee assigned by the Trustee to administer its corporate trust matters. "Securities Depository" means The Depository Trust Company, New York, New York or its nominee, and its successors and assigns, or any successor appointed under Section 5.01. "State" means the State of Georgia. "Supplemental Indenture" means the Supplemental Indenture, dated as of September 1, 1994, to the Company Indenture. "Trustee" means the entity identified as such in the heading of this Indenture and its successors under this Indenture. "Unassigned Rights" means the rights of the Issuer under Section 4.2 and Section 5.3 of the Agreement. "Weekly Rate" means an interest rate on the Bonds set under Section 2.02(a)(2). Section 1.02. Rules of Construction. Unless the context otherwise requires, 7 a. an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles, b. references to Articles and Sections are to the Articles and Sections of this Indenture, and c. the singular form of any word, including the terms defined in Section 1.01, includes the plural, and vice versa, and a word of any gender includes all genders. ARTICLE II THE BONDS Section 2.01. Issuance of Bonds; Form; Dating. The Bonds shall be designated "Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project), Second Series 1994." The total principal amount of Bonds that may be outstanding shall not exceed $20,000,000. The Bonds shall be substantially in the form of Exhibit A, which is part of this Indenture, in the denominations provided for in the Bonds. The Bonds may have notations, legends or endorsements required by law or usage. All Bonds will be dated the date of original issuance and delivery and shall mature, subject to prior redemption, on September 1, 2024. Bonds will be numbered as determined by the Trustee. Upon the execution and delivery of this Indenture, the Issuer will execute and deliver to the Trustee and the Trustee will authenticate the Bonds and deliver them to the purchaser or purchasers as directed by the Issuer. Section 2.02. Interest on the Bonds. Interest on the Bonds will be payable as provided in the Bonds and in this Section. Interest on the Bonds will initially be payable at the Daily Rate. The interest rate determination method may be changed by the Company as described in paragraph (b) below. The methods of determining the various interest rates are as provided in the following paragraph (a). (a) Interest Rate Determination Methods. While there exists an Event of Default under the Indenture, the interest rate on the Bonds will be the rate on the Bonds on the day before the Event of Default occurred, except that if interest on any Bond was then payable at a Commercial Paper Rate, the interest rate for all Bonds then bearing interest at a Commercial Paper Rate will be the highest Commercial Paper Rate then in effect for any Bond. 8 (1) Daily Rate. When interest on the Bonds is payable at a Daily Rate, the Remarketing Agent will set a Daily Rate on or before 11:00 a.m., New York City time, on each Business Day for that Business Day. Each Daily Rate will be the minimum rate necessary (as determined by the Remarketing Agent based on the examination of tax-exempt obligations comparable to the Bonds known by the Remarketing Agent to have been priced or traded under then-prevailing market conditions) for the Remarketing Agent to sell the Bonds on the day the rate is set at their principal amount (without regard to accrued interest). The Daily Rate for any non-Business Day will be the rate for the last day for which a rate was set. (2) Weekly Rate. When interest on the Bonds is payable at a Weekly Rate, the Remarketing Agent will set a Weekly Rate on or before 5:00 p.m., New York City time, on the last Business Day before the commencement of a period during which the Bonds bear interest at a Weekly Rate and on each Tuesday thereafter so long as interest on the Bonds is to be payable at a Weekly Rate or, if any Tuesday is not a Business Day, on the next preceding Business Day. Each Weekly Rate will be the minimum rate necessary (as determined by the Remarketing Agent based on the examination of tax-exempt obligations comparable to the Bonds known by the Remarketing Agent to have been priced or traded under then prevailing market conditions) for the Remarketing Agent to sell the Bonds on the date the rate is set at their principal amount (without regard to accrued interest). Thereafter, each Weekly Rate shall apply to (i) the period beginning on the Wednesday after the Weekly Rate is set and ending on the following Tuesday or, if earlier, ending on the day before the effective date of a new method of determining the interest rate on the Bonds or (ii) the period beginning on the effective date of the change to a Weekly Rate and ending on the next Tuesday. (3) Commercial Paper Rate. During a Commercial Paper Mode, each Bond will bear interest during the Commercial Paper Period for such Bond at the Commercial Paper Rate for such Bond. Different Commercial Paper Periods may apply to different Bonds at any time and from time to time. Except as otherwise described in this subparagraph (3), the Commercial Paper Period and Commercial Paper Rate for each Bond will be determined by the Remarketing Agent no later than 12:15 p.m., New York City time, on the first day of each Commercial Paper Period. (i) Determination of Commercial Paper Periods. Subject to Section 2.02(b)(2)(vii), each Commercial Paper Period will be a period of at least 30 days (or such shorter period as may be permitted by the 9 Securities Depository) and not more than 365 days, determined by the Remarketing Agent to be the period which, together with all other Commercial Paper Periods for all Bonds then outstanding, will, in the judgment of the Remarketing Agent, result in the lowest overall interest expense on the Bonds over the next 365 days; provided, however, that at any time at which a Credit Agreement is in effect, the Remarketing Agent shall not establish any Commercial Paper Period which would end at a time when no Credit Agreement will be in effect. Each Commercial Paper Period will end on either the day before a Business Day or on the day before the Maturity Date for such Bond. However, any Bond purchased on behalf of the Company and remaining unsold by the Remarketing Agent as of the close of business on the first day of the Commercial Paper Period for that Bond will have a Commercial Paper Period of 30 days (or such shorter period as may be permitted by the Securities Depository) or, if that Commercial Paper Period would not end on a day before a Business Day, a Commercial Paper Period of the shortest possible duration greater than 30 days (or such shorter period as may be permitted by the Securities Depository) ending on a day before a Business Day. In determining the number of days in each Commercial Paper Period, the Remarketing Agent shall take into account the following factors: (I) existing short-term tax-exempt market rates and indices of such short-term rates, (II) the existing market supply and demand for short-term tax-exempt securities, (III) existing yield curves for short-term and long-term tax-exempt securities for obligations of credit quality comparable to the Bonds, (IV) general economic conditions, (V) industry economic and financial conditions that may affect or be relevant to the Bonds, (VI) the number of days in other Commercial Paper Periods applicable to the Bonds and (VII) such other facts, circumstances and conditions as the Remarketing Agent, in its sole discretion, shall determine to be relevant. (ii) Determination of Commercial Paper Rates. The Commercial Paper Rate for each Commercial Paper Period for each Bond shall be the minimum rate necessary (as determined by the Remarketing Agent based on the examination of tax-exempt obligations comparable to the Bonds known by the Remarketing Agent to have been priced or traded under then-prevailing market conditions) for the Remarketing Agent to sell such Bond on the date and at the time of such determination at its principal amount (without regard to accrued interest). 10 (4) Long-Term Interest Rate. The Remarketing Agent will set a Long-Term Interest Rate on a date no more than 15 days before the beginning of any period (a "Long-Term Interest Rate Period") in which interest on any of the Bonds will be payable at a Long-Term Interest Rate. The last day of each such Long-Term Interest Rate Period shall be determined by the Company in accordance with Section 2.02(b)(1). Each Long-Term Interest Rate will be the minimum rate necessary (as determined by the Remarketing Agent based on the examination of tax-exempt obligations comparable to the Bonds known by the Remarketing Agent to have been priced or traded under then-prevailing market conditions) for the Remarketing Agent to sell the Bonds on the effective date of the Long-Term Interest Rate at their principal amount (without regard to accrued interest). (5) Failure of Remarketing Agent to Announce Interest Rates on the Bonds. If the appropriate interest rate or Commercial Paper Period is not or cannot be determined for whatever reason, the method of determining interest on the Bonds shall be automatically converted to the Weekly Rate (without the necessity of complying with the requirements of Section 2.02(b)) and the interest rate shall be equal to the J.J. Kenny Index, or such other index (or percentage of an index) deemed appropriate for tax-exempt securities of the nature of the Bonds as the Remarketing Agent may have previously selected, until such time as the method of determining interest on the Bonds can be changed in accordance with Section 2.02(b); provided, that if the Bonds are then in a Long-Term Interest Rate Period, the Bonds shall bear interest at a Weekly Rate, but only if a Favorable Opinion of Tax Counsel with respect to the change to a Weekly Rate has been delivered to the Trustee. If such Favorable Opinion of Tax Counsel has not been delivered, the Bonds shall remain in a Long-Term Interest Rate Period with an interest rate equal to the interest rate for the prior Long-Term Interest Rate Period and with a duration equal to the prior Long-Term Interest Rate Period (or, if earlier, a Long-Term Interest Rate Period ending on the day before the Maturity Date for such Bond). The Trustee shall promptly notify the Bondholders of any such automatic change as set forth in Section 2.02(c). While Bonds are in a Commercial Paper Mode, during any transition period caused by an automatic conversion of such Bonds to a Weekly Rate in accordance with this Subsection (5), Bonds bearing interest at a Weekly Rate and Bonds bearing interest at a Commercial Paper Rate, as applicable, shall be governed by the provisions of this Indenture applicable to such methods of determining interest on the Bonds. 11 (b) (1) Change in Interest Rate Determination Method. The Company may change the method of determining the interest rate on the Bonds by notifying the Issuer, the Trustee, the Remarketing Agent and, if a Book-Entry System is then in effect for the Bonds, the Securities Depository. Such notice shall contain (a) the effective date, (b) the proposed interest rate determination method, and (c) if the change is to a Long-Term Interest Rate or Rates, the last day of the first such Long-Term Interest Rate Period and, at the option of the Company, the effective date and last day of any successive Long-Term Interest Rate Periods (which last day for each Long-Term Interest Rate Period must be either the day before the Maturity Date for such Bonds or a day which is before a Business Day and is at least 365 days after the effective date). The Long-Term Interest Rate Period shall be the same duration for all of the Bonds. The notice must be accompanied by a Favorable Opinion of Tax Counsel, except as described below. If the Company's notice complies with this paragraph, and if the Company shall deliver a confirming Opinion of Tax Counsel on the effective date as specified in the notice, the interest rate on the Bonds will be payable at the new rate on the effective date specified in the notice until there is another change as provided in this Section. Notwithstanding anything in this Indenture to the contrary, the Company must deliver a Favorable Opinion of Tax Counsel whenever there is a change from a period during which the interest rate on the Bonds is set at intervals of 365 days or less to a period during which the interest rate on the Bonds is set at intervals in excess of 365 days, or vice versa. If the Company wishes to designate successive Long-Term Interest Rate Periods without specifying the effective dates and last days as described in the preceding paragraph for the second or any subsequent Long-Term Interest Rate Periods, it may do so by following the same procedure as for a change in the interest rate determination method as provided in the foregoing paragraph. If, 30 days before the end of a Long-Term Interest Rate Period, the Company has not provided for the next interest rate period, a new Long-Term Interest Rate Period of the same duration will follow (or if shorter, a Long-Term Interest Rate Period ending on the day before the Maturity Date for the Bonds). When one Long-Term Interest Rate Period follows another, all provisions of this Indenture applying to a change in the interest rate determination method will apply, except: (A) the redemption described under "Mandatory Redemption Upon a Change in the Method of Determining the Interest Rate on the Bonds" in the Bonds; (B) the Company will not be required to deliver a Favorable Opinion of Tax Counsel if a new Long-Term Interest 12 Rate Period begins as a result of the Company failing to provide for the next interest rate period; and (C) the Company will not be required to deliver a Favorable Opinion of Tax Counsel if the Company has previously designated a series of successive Long-Term Interest Rate Periods which, together with the current Long- Term Interest Rate Period, are substantially equal in length, and if a Favorable Opinion of Tax Counsel was delivered before the first such Long-Term Interest Rate Period in that series which applies to each such successive Long-Term Interest Rate Period. (2) Limitations. Any change in the method of determining interest on the Bonds pursuant to paragraph (1) above must comply with the following: (i) the effective date of a change (or each effective date in the case of a change from a Commercial Paper Mode) shall be a Business Day which is at least 15 days (30 days if a Long-Term Interest Rate is then in effect and the effective date is before the day after the last day of a Long-Term Interest Rate Period) after the twelfth Business Day after receipt by the Trustee of the Company's notice of the change; (ii) if a Long-Term Interest Rate is then in effect, the effective date of any change must be either the day after the last day of the then current Long-Term Interest Rate Period or, except as described in clause (iii) below, a day on which the Bonds would otherwise be subject to redemption under the paragraph "Optional Redemption at a Premium During Long-Term Interest Rate Period" in Section 8 of the Bonds if the change did not occur; (iii) if the Company has previously designated successive Long-Term Interest Rate Periods, the effective date of each Long-Term Interest Rate Period must be the day after the last day of the previous Long-Term Interest Rate Period; (iv) if a Commercial Paper Mode is then in effect, the effective date of any change must be either the day after the last day of the Commercial Paper Mode or, as to any Bond, the day after the last day of the Commercial Paper Period then in effect (or to be in effect) with respect to that Bond; (v) if any Bonds have been called for redemption and the redemption has not yet occurred, the effective date of the change cannot be before such redemption date; 13 (vi) if a Long-Term Interest Rate or a Daily Rate is then in effect, the effective date of any change cannot occur during the period after a Record Date and to, but not including, the related Interest Payment Date; and (vii) if a Commercial Paper Mode is then in effect, the Remarketing Agent shall determine Commercial Paper Periods of such duration that will, in the judgment of the Remarketing Agent, best promote an orderly transition on the effective date. After the receipt by the Trustee of the Company's notice of such change, the day after the last day of each Commercial Paper Period shall be, with respect to such Bond, the effective date of the change. The Remarketing Agent shall promptly give written notice of each such last date and each such effective date with respect to each Bond to the Issuer, the Company, and the Trustee. During any such transition period, Bonds bearing interest at a Commercial Paper Rate shall be governed by the provisions of this Indenture applicable to a Commercial Paper Mode and Bonds bearing interest at a Daily Rate, Weekly Rate or Long-Term Interest Rate, as applicable, shall be governed by the provisions of this Indenture applicable to such methods of determining interest on the Bonds. (c) Notice to Bondholders of Change in Interest Rate Determination Method. When a change in the interest rate determination method is to be made, or upon commencement of a new Long-Term Interest Rate Period, the Trustee will, upon notice from the Company pursuant to Section 2.02(b), notify the Bondholders by first class mail at least 15 days before the effective date (or each effective date in the case of an adjustment from a Commercial Paper Mode) of the change, except that such notice shall be given at least 30 days prior to the effective date if a Long-Term Interest Rate is in effect and the effective date is on or before the end of the Long-Term Interest Rate Period. The notice shall be effective when sent and shall state: (1) that the interest rate determination method will be changed and what the new method will be, (2) the effective date of the new rate, and (3) that a mandatory redemption or mandatory purchase in lieu of redemption will result on the effective date of the change as provided in the Bonds and all the information required by this Indenture to be included in a notice of redemption set forth in Section 3.04. The information required in any notice pursuant to this subsection (c) and the information referred to in any redemption 14 notice (including an Additional Notice) pursuant to Section 3.04 may be combined in a single notice if it is sent to Bondholders in the manner and at the time specified under "Notice of Redemption" in Section 8 of the form of the Bonds. (d) Calculation of Interest. The Remarketing Agent shall provide the Trustee and the Company with notice in writing or by telephone (any such notice by telephone to be delivered to a Responsible Officer of the Trustee) promptly confirmed by facsimile transmission by 12:30 p.m., New York City time, (1) on the first Business Day after a month in which interest on the Bonds was payable at a Daily Rate, of the Daily Rate for each day in such month, (2) on each day on which a Weekly Rate becomes effective, of the Weekly Rate, (3) on the first day of each Commercial Paper Period, of the length thereof and the Commercial Paper Rate, and, if there is more than one Commercial Paper Rate then in effect, of the related applicable principal amounts, (4) on the first Business Day of a Long-Term Interest Rate Period, of the Long-Term Interest Rate or Long-Term Interest Rates set for that period and the related applicable principal amounts, and (5) on any Business Day preceding any redemption or purchase date, any interest rate requested by the Trustee in order to enable it to calculate the accrued interest, if any, due on such redemption or purchase date. Using the rates supplied by this notice, the Trustee will calculate the interest payable on the Bonds. The Remarketing Agent will inform the Trustee and the Company orally at the oral request of either of them of any interest rate set by the Remarketing Agent. The Trustee will confirm the effective interest rate by telephone or in writing to any Bondholder who requests it in any manner. The setting of the rates and the determination of Commercial Paper Periods by the Remarketing Agent and the calculation of interest payable on the Bonds by the Trustee as provided in this Indenture will be conclusive and binding on the Issuer, the Company, the Trustee and the owners of the Bonds. (e) Change in Rate Determination Method-Opinions of Counsel. Notwithstanding any provision of this Section 2.02, no change shall be made in the interest rate determination method at the direction of the Company pursuant to Section 2.02(b)(1) hereof if the Company shall fail to deliver a Favorable Opinion 15 of Tax Counsel and confirmation thereof required under Section 2.02(b)(1). If the Trustee shall have sent any notice to the Bondholders regarding a change in rate under Section 2.02(c), then in the event of such failure to deliver such opinion or confirmation, the Trustee shall promptly notify all Bondholders of such failure. (f) Notice to Bondholders of Voluntary Termination of Credit Agreement. If the Trustee receives notice from the Company as provided in Section 3.6 of the Agreement to the effect that the Company intends to terminate the Credit Agreement prior to its stated termination date, the Trustee shall notify the Bondholders by first class mail at least 15 Business Days prior to the effective date of such termination. The notice shall be effective when sent and shall state: (1) that the Company has notified the Trustee that it intends to terminate the Credit Agreement; (2) the effective date of such termination; and (3) if the interest is then payable at a Daily Rate or a Weekly Rate, that the Bondholders have the right to tender Bonds to the Trustee for purchase as provided in Section 6 of the form of the Bonds set out in Exhibit A hereto. Section 2.03. Execution and Authentication. The Bonds shall be signed on behalf of the Issuer with the manual or facsimile signature of its Chairman or Vice Chairman and attested by the manual or facsimile signature of its Secretary or Assistant Secretary, and the seal of the Issuer shall be impressed or imprinted on the Bonds by facsimile or otherwise. All authorized facsimile signatures shall have the same effect as if manually signed. If an officer of the Issuer whose signature is on a Bond no longer holds that office at the time the Trustee authenticates the Bond, the Bond shall nevertheless be valid. Also, if a person signing a Bond is the proper officer on the actual date of execution, the Bond shall be valid even if that person is not the proper officer on the nominal date of action. A Bond shall not be valid for any purpose under this Indenture until the Trustee manually signs the certificate of authentication on the Bond. Such signature shall be conclusive evidence that the Bond has been authenticated under this Indenture. As a precondition to the initial authentication and delivery of the Bonds, the Trustee shall receive a request and authorization to the Trustee from the Issuer, signed by the Chairman or Vice Chairman of the Issuer, to authenticate and 16 deliver the Bonds to the persons and in the manner therein described. Section 2.04. Bond Register. Bonds must be presented at the principal corporate trust office of the Trustee for registration, registration of transfer, exchange and payment. Bonds tendered by their holders must be delivered as specified in the Bonds. The Trustee shall keep a register of Bonds and of their registration of transfer and exchange, which register shall be open to inspection by the Issuer and the Company during normal business hours. Section 2.05. Registration and Exchange of Bonds; Persons Treated as Owners. Bonds may be registered as transferred only on the register maintained by the Trustee. Upon surrender for registration of transfer of any Bond to the Trustee, duly endorsed for transfer or accompanied by an assignment duly executed by the holder or the holder's attorney duly authorized in writing, the Trustee will authenticate a new Bond or Bonds of the same maturity, in an equal total principal amount and registered in the name of the transferee. Bonds may be exchanged for an equal total principal amount of Bonds of the same maturity but of different authorized denominations. The Trustee will authenticate and deliver Bonds that the Bondholder making the exchange is entitled to receive, bearing numbers not then outstanding. Except in connection with the purchase of Bonds tendered for purchase or purchased in lieu of redemption, the Trustee will not be required to register the transfer of or to exchange any Bond called for redemption or during the period beginning 15 days before the mailing of notice calling the Bonds or any portion of the Bonds for redemption and ending on the redemption date. The registered owner of a Bond shall be treated as the absolute owner of the Bond for all purposes, and payment of principal, interest or purchase price shall be made only to or upon the written order of the holder or the holder's legal representative, notwithstanding any notice, actual or constructive, to the contrary. The Trustee will require the payment by a Bondholder requesting exchange or registration of transfer of any tax or other governmental charge required to be paid in respect of the exchange or registration of transfer but will not impose any other charge. Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds. If any Bond is mutilated, lost, stolen or destroyed, the Trustee will authenticate a new Bond of the same denomination with similar terms if any mutilated Bond shall first 17 be surrendered to the Trustee, and if, in the case of any lost, stolen or destroyed Bond, there shall first be furnished to the Issuer, the Trustee and the Company evidence of such loss, theft or destruction, together with an indemnity, satisfactory to them. If the Bond has matured or become subject to redemption or purchase, instead of issuing a replacement Bond, the Trustee may with the consent of the Company pay the Bond without requiring surrender of the Bond and make such requirements as the Trustee deems fit for its protection, including a lost instrument bond. The Issuer, the Company and the Trustee may charge their reasonable fees and expenses in this connection. If a Bond is called for redemption and the Company elects to purchase the Bond in lieu of redemption as provided in Article III, or if the holder of a Bond gives irrevocable instructions to the Remarketing Agent for purchase, and in each case funds are deposited with the Trustee sufficient for the purchase, the Trustee upon request of the Company or the Remarketing Agent will authenticate a new Bond in the same maturity and in the same denomination registered as the Company or the Remarketing Agent may direct and deliver it to the Company or upon the Company's order, whether or not the Bond purchased or called for redemption is ever delivered, and the undelivered Bonds shall be cancelled on the books of the Trustee, whether or not said undelivered Bonds have been delivered to the Trustee. From and after the purchase date, interest on such Bond shall cease to be payable to the prior holder thereof, such holder shall cease to be entitled to the benefits or security of this Indenture and shall have recourse solely to the funds held by the Trustee for the purchase of such Bond and the Trustee shall not register any further transfer of such Bond by such prior holder. All funds held by the Trustee for the purchase of undelivered Bonds shall be held uninvested. Section 2.07. Cancellation of Bonds. Whenever a Bond is delivered to the Trustee for cancellation (upon payment, redemption or otherwise), or for registration of transfer, exchange or replacement pursuant to Section 2.05 or Section 2.06, the Trustee will promptly cancel and dispose of the Bond in accordance with the Trustee's policy of disposal; provided, however, that the Trustee shall not be required to destroy cancelled Bonds. Section 2.08. Temporary Bonds. Until definitive Bonds are ready for delivery, the Issuer may execute and the Trustee will authenticate temporary Bonds substantially in the form of the definitive Bonds, with appropriate variations. The Issuer will, without unreasonable delay, prepare and the Trustee will authenticate definitive Bonds in exchange for the temporary Bonds. Such exchange shall be made by the Trustee without charge. 18 ARTICLE III REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING Section 3.01. Notices to Trustee. If the Company wishes that any Bonds be redeemed pursuant to any optional redemption provision in the Bonds, the Company will notify the Trustee of the applicable provision, the redemption date, the principal amount of the Bonds to be redeemed and other necessary particu- lars in accordance with Section 4.7 of the Agreement. Section 3.02. Redemption Dates. The redemption date of Bonds to be redeemed pursuant to any optional redemption provision in the Bonds will be a date permitted by the Bonds and specified by the Company in the notice delivered pursuant to Section 4.7 of the Agreement. The redemption date for mandatory redemptions will be as specified in the Bonds to be redeemed or determined by the Trustee consistently with the provisions of the Bonds. Section 3.03. Selection of Bonds to Be Redeemed. Except as provided in the Bonds, if fewer than all the Bonds are to be redeemed, the Trustee will select the Bonds to be redeemed by lot or other method it deems fair and appropriate, except that the Trustee will first select any Bonds owned by the Company or any of its nominees or held by the Trustee for the account of the Company or any of its nominees. The Trustee will make the selection from Bonds not previously called for redemption. For this purpose, the Trustee will consider each Bond in a denomination larger than the minimum denomination permitted by the Bonds at the time to be separate Bonds each in the minimum denomination. Provisions of this Indenture that apply to Bonds called for redemption also apply to portions of Bonds called for redemption. Section 3.04. Redemption Notices. (a) Official Notice of Redemption. The Trustee will give notice of each redemption as provided in the Bonds and will at the same time give a copy of the notice to the Remarketing Agent, provided that no redemption notice shall be given with respect to a redemption under "Mandatory Redemption on Each Interest Payment Date During Commercial Paper Mode" in Section 8 of the form of the Bonds. The notice shall identify the Bonds to be redeemed and shall state (1) the redemption date (and, if the Bonds provide that accrued interest will not be paid on the redemption date, the date it will be paid), (2) the redemption price, (3) that the Bonds called for redemption must be surrendered to collect the redemption price, (4) the address at which the Bonds must be surrendered and (5) that interest on the Bonds called for redemption ceases to accrue on the redemption date. 19 With respect to an optional redemption of any Bonds under "Optional Redemption at a Premium During Long-Term Interest Rate Period," "Extraordinary Optional Redemption" or "Optional Redemp- tion During Daily or Weekly Rate Period" in Section 8 of the form of the Bonds, unless moneys sufficient to pay the principal of, redemption premium, if any, and interest on the Bonds to be redeemed shall have been received by the Trustee prior to the giving of such notice of redemption, such notice may state that said redemption shall be conditional upon the receipt of such moneys by the Trustee on or prior to the date fixed for redemption. If such moneys are not received, such notice shall be of no force and effect, the Issuer shall not redeem such Bonds, the redemption price shall not be due and payable, and the Trustee shall give notice, in the same manner in which the notice of redemption was given, that such moneys were not so received and that such Bonds will not be redeemed. Failure to give any required notice of redemption as to any particular Bonds or any defect therein will not affect the validity of the call for redemption of any Bonds in respect of which no such failure or defect has occurred. Any notice mailed as provided in the Bonds shall be effective when sent and will be conclusively presumed to have been given whether or not actually received by any holder. (b) Additional Notice of Redemption. In addition to the redemption notice required above, if there is not a Book-Entry System in effect for the Bonds, further notice (the "Additional Notice") shall be given by the Trustee as set out below. No defect in the Additional Notice nor any failure to give all or any portion of the Additional Notice shall in any manner defeat the effectiveness of a call for redemption if notice is given as prescribed in paragraph (a) above. (1) Each Additional Notice of redemption shall contain the information required in paragraph (a) above for an official notice of redemption plus (i) the CUSIP numbers of all Bonds being redeemed; (ii) the date of the Bonds as originally issued; (iii) the interest rate determination method for, or the rate of interest borne by each Bond being redeemed; (iv) the maturity date of each Bond being redeemed; and (v) any other descriptive information needed to identify accurately the Bonds being redeemed. (2) Each Additional Notice of redemption shall be sent at least 30 days before the redemption date by registered or certified mail or overnight delivery service (or by such other means as the Trustee may have established with the securities depository or information service) to all registered securities depositories then in the business of holding substantial amounts of obligations similar to the Bonds (such depositories now being Depository Trust Company 20 of New York, New York, Midwest Securities Trust Company of Chicago, Illinois, and Philadelphia Depository Trust Company of Philadelphia, Pennsylvania) and to one or more national information services that disseminate notices of redemption of obligations such as the Bonds. The information required in any redemption notice (including an Additional Notice) pursuant to this Section and the information required in any notice pursuant to Section 2.02(c) may be combined in a single notice if it is sent to Bondholders in the manner and at the time specified under "Notice of Redemption" in Section 8 of the form of the Bonds. Section 3.05. Payment of Bonds Called for Redemption. Upon surrender to the Trustee, Bonds called for redemption shall be paid or purchased in lieu of redemption as provided in this Article at the redemption price stated in the notice, plus interest accrued to the redemption date, or at a purchase price as provided in the form of Bond, except that interest payable on Bonds bearing interest at a Daily Rate will be paid on the fifth Business Day following the redemption date. Bonds called for redemption and purchased pursuant to a tender before the redemption date will not be redeemed but will be dealt with as provided below in this Article. Upon the payment of the redemption price of the Bonds being redeemed, each check or other transfer of funds issued for such purpose shall bear the CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or other transfer. Section 3.06. Bonds Redeemed in Part. Subject to Article V, upon surrender of a Bond redeemed or purchased in lieu of redemption in part, the Trustee will authenticate for the holder a new Bond or Bonds in authorized denominations equal in principal amount to the unredeemed or unpurchased portion of the Bond surrendered. Section 3.07. Purchase of Bonds in Lieu of Redemption. When Bonds are called for redemption pursuant to the paragraphs captioned, "Mandatory Redemption at Beginning of a New Long-Term Interest Rate Period" or "Mandatory Redemption Upon a Change in the Method of Determining the Interest Rate on the Bonds" in Section 8 of the form of the Bonds, the Company may purchase some of or all the Bonds called for redemption for a price equal to the otherwise applicable redemption price, if it (or the Remarketing Agent) gives written notice to the Trustee by 5:00 p.m. New York City time on the day before the redemption date that it wishes to purchase the Bonds the principal amount of which is specified in the notice and furnishes the Trustee sufficient money in sufficient time for the Trustee to make the purchase on the redemption date. The Trustee will purchase Bonds called for redemption pursuant to the paragraph captioned 21 "Mandatory Redemption on Each Interest Payment Date During Commercial Paper Mode" unless otherwise instructed in writing by the Company, or unless the Indenture otherwise requires that they be redeemed and cancelled, before the redemption date. The Trustee will purchase the Bonds pursuant to this Section only as provided in Section 4.02. Section 3.08. Disposition of Purchased Bonds. (a) Bonds to be Remarketed. Bonds purchased pursuant to tenders as provided in the form of Bonds or in lieu of redemption as provided in the foregoing Section will be offered for sale by the Remarketing Agent as provided in this Section except as follows: (1) Bonds purchased pursuant to a tender after having been called for redemption under a provision in the form of Bond that does not provide the Company an option to purchase in lieu of redemption will be canceled. (2) Bonds called for redemption under "Mandatory Redemption Upon a Change in the Method of Determining the Interest Rate on the Bonds" in Section 8 of the form of Bond, which are tendered between the date notice of redemption is given and the redemption date, may be remarketed before the redemption date only if the buyer receives a copy of the redemption notice from the Remarketing Agent. (3) Bonds will not be offered for sale under this Section during the continuance of an Event of Default under Section 8.01(a), (b), (c) or (d). Bonds will be offered for sale under this Section during the continuance of any other Event of Default or an event which with the passage of time or the giving of notice or both may become an Event of Default only in the sole discretion of the Remarketing Agent. (b) Remarketing Effort. Except to the extent the Company directs the Remarketing Agent not to do so, the Remarketing Agent will offer for sale and use reasonable efforts to sell all Bonds to be sold as provided in paragraph (a) above and, when directed by the Company, any Bonds held by the Company. The sale price of each Bond must be equal to the principal amount of each Bond plus accrued interest, if any, to the purchase date. The Company may direct the Remarketing Agent from time to time to cease and to resume sales efforts with respect to some of or all the Bonds. The Remarketing Agent may buy as principal any Bonds to be offered under this Section. (c) Notices in Respect of Tenders. When the Trustee receives a notice from a Bondholder (or a Beneficial Owner through its direct Participant) as specified in paragraph 6 of the form of the Bond for the Bondholder (or a Beneficial Owner 22 through its direct Participant) to tender Bonds, the Trustee will promptly notify the Remarketing Agent and the Company by facsimile transmission or telephone, promptly confirmed in writing, of the receipt of such notice, but in no event later than the following times: (i) when the Bonds bear interest at a Daily Rate, no later than 11:15 a.m. (New York City time) on the same Business Day; and (ii) when the Bonds bear interest at a Weekly Rate, no later than 11:15 a.m. (New York City time) on the Business Day next succeeding receipt of such notice. (d) Delivery of Remarketed Bonds. (i) Except when a book-entry system of registration is in effect, the Trustee shall hold all Bonds delivered pursuant to this Section in trust for the benefit of the owners thereof until moneys representing the purchase price of such Bonds shall have been delivered to or for the account of or to the order of such Bondholders, and thereafter, if such Bonds are remarketed, shall deliver replacement Bonds, prepared by the Trustee in accordance with the directions of the Remarketing Agent and authenticated by the Trustee, for any Bonds purchased in accordance with the written directions of the Remarketing Agent to the Remarketing Agent for delivery to the purchasers thereof. (ii) The Remarketing Agent shall advise the Trustee and the Company in writing or by facsimile transmission of the principal amount of Bonds which have been remarketed, together with the denominations and registration instructions (including taxpayer identification numbers) in accordance with the following schedule (all times of which are New York City time): CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION DETERMINATION OR, IN CONNECTION TO BE FURNISHED WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE NEW METHOD OF INTEREST RATE DETERMINATION Commercial Paper Period 12:15 p.m. on the purchase date Daily Rate Period 12:15 p.m. on the purchase date Weekly Rate Period 12:15 p.m. on the purchase date Long -Term Interest Rate Period 12:15 p.m. on the purchase date 23 (iii) The terms of any sale by the Remarketing Agent shall provide for the authorization of the payment of the purchase price by the Remarketing Agent to the Trustee in exchange for Bonds registered in the name of the new Bondholder which shall be delivered by the Trustee to the Remarketing Agent at or before 2:00 p.m. (New York City time) on the purchase date if the purchase price has been received from the Remarketing Agent by the time set forth in Section 3.08(e) on the purchase date. (e) Delivery of Proceeds of Sale. The Remarketing Agent shall deliver directly to the Trustee an amount equal to the principal amount thereof plus accrued interest, if any, of the Bonds which the Remarketing Agent has advised the Trustee have been remarketed pursuant to Section 3.08(d)(ii) no later than 12:30 p.m. (New York City time) on the purchase date. ARTICLE IV APPLICATION OF PROCEEDS AND PAYMENT OF BONDS Section 4.01. Application of Proceeds. The Issuer will cause the proceeds of the initial sale of the Bonds to be deposited with the Trustee in a redemption fund which is hereby created as a trust fund hereunder. On a date or dates to be designated by the Company the Trustee will disburse the proceeds of the initial sale of the Bonds and any investment earnings thereon in such redemption fund to the Refunded Bonds Trustee for deposit in the bond fund under the Prior Indenture, to be applied to pay the redemption price of the Refunded Bonds upon call for redemption. Pursuant to Section 3.1 of the Agreement, the Company has agreed to pay to the Refunded Bonds Trustee the amount in excess of the proceeds of the Bonds needed to pay the redemption price of the Refunded Bonds Section 4.02. Payment of Bonds. The Trustee will make payments of principal of, premium, if any, and interest on the Bonds from moneys available to the Trustee under this Indenture for that purpose. The Trustee will pay the purchase price of tendered Bonds first from the proceeds of the sale of Bonds under Section 3.08 and second from other moneys available to the Trustee for that purpose. All moneys received as proceeds of remarketing the Bonds under Section 3.08 shall be held segregated by the Trustee in a separate and segregated trust account. To the extent that the payment of principal or interest on the Bonds is made from moneys as described in this Section, such payment shall also satisfy and discharge any payment obligation of the Company under the Note or the First Mortgage Bonds and the Trustee shall promptly notify 24 the Company and the Mortgage Trustee in writing if such payment requirement has not been satisfied. If any Bond is redeemed prior to maturity or if the Company surrenders any Bond to the Trustee for cancellation, the Trustee shall cancel such Bond and surrender to the Company First Mortgage Bonds in a principal amount and maturing on the date corresponding to the Bond so redeemed or otherwise cancelled. The Trustee shall promptly give notice to the Mortgage Trustee of any such redemption or cancellation of a portion of the First Mortgage Bond. Section 4.03. Investments of Moneys. The Trustee will invest and reinvest moneys held by the Trustee as directed in writing by the Company to the extent permitted by law, in: (a) Government Obligations; (b) Bonds and notes of the Federal Land Bank; (c) Obligations of the Federal Intermediate Credit Bank; (d) Obligations of the Federal Bank for Cooperatives; (e) Bonds and notes of Federal Home Loan Banks; (f) Negotiable or non-negotiable certificates of deposit, time deposits or similar banking arrangements, issued by a bank or trust company (which may be the commercial banking department of the Trustee or any bank or trust company under common control with the Trustee) or savings and loan association which are insured by the Federal Deposit Insurance Corporation or secured as to principal by Government Obligations; or (g) Other investments then permitted by law. The Trustee may make investments permitted by this Article through its own bond department or the bond department of any bank or trust company under common control with the Trustee. Investments will be made so as to mature or be subject to redemp- tion at the option of the holder on or before the date or dates that the Trustee anticipates that moneys from the investments will be required. The Trustee, when authorized by the Company, may trade with itself in the purchase and sale of securities for such investment. Investments will be registered in the name of the Trustee and held by or under the control of the Trustee. The Trustee will sell and reduce to cash a sufficient amount of investments whenever the cash held by the Trustee is insufficient. The Trustee shall not be liable for any loss from such investments to the extent directed by the Company and to the extent such directions have been complied with by the Trustee. Section 4.04. Moneys Held in Trust; Unclaimed Funds. The Trustee shall deposit into a separate segregated trust account 25 for the benefit of the Bondholders all moneys received by it for any payment on the Bonds. The proceeds of the initial sale of the Bonds shall be held in a separate and segregated account by the Trustee until disbursed as described in Section 4.01. Money received by the Remarketing Agent or the Trustee from the sale of a Bond under Section 3.08 or for the purchase of a Bond will be held segregated from other funds of the Remarketing Agent or the Trustee in trust for the benefit of the person from whom such Bond was purchased or the person delivering such purchase money, as the case may be, and will not be invested. The Trustee shall promptly, but in no event later than 30 days of their original deposit, apply moneys received from the Company in accordance with this Indenture and as directed by the Company. Notwithstanding the provisions of the immediately preceding paragraph, any moneys which shall be set aside by the Trustee or deposited by the Trustee with the paying agents and which shall remain unclaimed by the holders of such Bonds for a period of six (6) years after the date on which such Bonds shall have become due and payable shall upon request in writing be paid to the Company or to such officer, board or body as may then be entitled by law to receive the same, and thereafter the holders of such Bonds shall look only to the Company or to such officer, board or body, as the case may be, for payment and then only to the extent of the amount so received without any interest thereon, and the Trustee, the Issuer and the paying agents shall have no responsibility with respect to such moneys. ARTICLE V BOOK-ENTRY SYSTEM Section 5.01. Book-Entry System. The Bonds shall be initially issued in the name of Cede & Co., as nominee for The Depository Trust Company as the initial Securities Depository and registered owner of such Bonds, and held in the custody of the Securities Depository. A single certificate will be issued and delivered to the Securities Depository for the Bonds. The Beneficial Owners will not receive physical delivery of Bond certificates except as provided herein. For so long as the Securities Depository shall continue to serve as securities depository for such Bonds as provided herein, all transfers of beneficial ownership interests will be made by book-entry only on the records of the Securities Depository, and no investor or other party purchasing, selling or otherwise transferring beneficial ownership of such Bonds is to receive, hold or deliver any Bond certificate. The Issuer, the Company and the Trustee will recognize the Securities Depository or its nominee as the Bondholder of such Bonds for all purposes, including payment, notices and voting. 26 The Issuer and the Trustee covenant and agree, so long as The Depository Trust Company shall continue to serve as Securities Depository for the Bonds, to meet the requirements of The Depository Trust Company with respect to required notices and other provisions of the Letter of Representations among The Depository Trust Company, the Issuer, the Trustee, the Company and the Remarketing Agent, executed with respect to the Bonds. The Issuer, the Trustee, the Company and the Remarketing Agent may conclusively rely upon (i) a certificate of the Securities Depository as to the identity of the Participants in the Book-Entry-System and (ii) a certificate of any such Participant as to the identity of, and the respective principal amount of Bonds beneficially owned by, the Beneficial Owners. Whenever, during the term of the Bonds, the beneficial ownership thereof is determined by a book-entry at the Securities Depository, the requirements in this Indenture of holding, delivering or transferring Bonds shall be deemed modified to require the appropriate person to meet the requirements of the Securities Depository as to registering or registering the transfer of the book-entry to produce the same effect. Any provision hereof permitting or requiring delivery of Bonds shall, while the Bonds are in a Book-Entry System, be satisfied by the notation on the books of the Securities Depository in accordance with applicable law. The Trustee and the Issuer, at the direction and expense of the Company and with the consent of the Remarketing Agent, may from time to time appoint a successor Securities Depository and enter into an agreement with such successor Securities Depository to establish procedures with respect to the Bonds consistent with current industry practice. Any successor Securities Depository shall be a "clearing agency" registered under Section 17A of the Securities Exchange Act of 1934, as amended. None of the Issuer, the Company, the Trustee nor the Remarketing Agent will have any responsibility or obligation to any Securities Depository, any Participants in the Book-Entry System or the Beneficial Owners with respect to (i) the accuracy of any records maintained by the Securities Depository or any Participant; (ii) the payment by the Securities Depository or by any Participant of any amount due to any Beneficial Owner in respect of the principal amount or redemption or purchase price of, or interest on, any Bonds; (iii) the delivery of any notice by the Securities Depository or any Participant; (iv) the selection of the Beneficial Owners to receive payment in the event of any partial redemption of the Bonds; or (v) any other action taken by the Securities Depository or any Participant. 27 Bond certificates are required to be delivered to and registered in the name of the Beneficial Owner, under the following circumstances: (a) The Securities Depository determines to discontinue providing its service with respect to the Bonds and no successor Securities Depository is appointed as described above. Such a determination may be made at any time by giving 30 days' notice to the Issuer, the Company and the Trustee and discharging its responsibilities with respect thereto under applicable law. (b) The Company determines not to continue the Book- Entry System through a Securities Depository. The Trustee is hereby authorized to make such changes to the form of bond attached hereto as Exhibit A which are necessary or appropriate to reflect that the Book-Entry System is not in effect, that a successor Securities Depository has been appointed or that an additional or co-paying agent or tender agent has been designated pursuant to Section 13.03 hereof. If at any time, the Securities Depository ceases to hold the Bonds all references herein to the Securities Depository shall be of no further force or effect. ARTICLE VI COVENANTS Section 6.01. Payment of Bonds. The Issuer will promptly pay the principal of, premium, if any, and interest on, and other amounts due with respect to, the Bonds on the dates and in the manner provided in the Bonds, but only from the amounts assigned to and held by the Trustee under this Indenture. Neither the State of Georgia, nor any political subdivision thereof (including Monroe County) shall be obligated to pay the principal of the Bonds, or the premium, if any, or interest thereon or other costs incidental thereto, the same being payable solely from the revenues and receipts hereinabove referred to. Neither the faith and credit nor the taxing power of the State of Georgia or any political subdivision thereof (including Monroe County) is pledged to the payment of the principal of the Bonds, or the premium, if any, or interest thereon, or the costs incidental thereto. Section 6.02. Performance of Covenants; Issuer. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all of its proceedings pertaining hereto. The Issuer covenants that it is 28 duly authorized under the Constitution and laws of the State of Georgia, including particularly and without limitation the Act, to issue the Bonds authorized hereby and to execute this Indenture, to assign and pledge the Note and the Agreement and the amounts payable under the Note and the First Mortgage Bonds, and to pledge the amounts hereby pledged in the manner and to the extent herein set forth; that all action on its part necessary for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and effectively taken; and that the Bonds in the hands of the owners thereof are and will be valid and enforceable obligations of the Issuer according to the terms thereof and hereof. Section 6.03. Recording and Filing; Further Assurances. The Issuer will execute and deliver such supplemental indentures and such further instruments, and do such further acts, as the Trustee may reasonably require for the better assuring, assigning and confirming to the Trustee the amounts assigned under this Indenture for the payment of the Bonds. The Issuer further covenants that it will not create or suffer to be created any lien, encumbrance or charge upon its interest in the Note, the First Mortgage Bonds or the Agreement, if any, except the lien of this Indenture. Section 6.04. Tax Covenants. The Issuer covenants that it shall take no action nor make 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 Code to the extent that the same may be applicable or proposed to be applicable to the Bonds at the time of such action, investment or use. Notwithstanding any provision of this Indenture to the contrary, the Trustee shall not be liable or responsible for any calculation or determination which may be required in connection with, or for the purpose of complying with, Section 148 of the Code, or any successor statute or any regulation, ruling or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid to the United States of America or the determination of the maximum amount which may be invested in nonpurpose obligations having a yield higher than the yield on the Bonds, and the Trustee shall not be liable or responsible for monitoring the compliance by the Issuer or the Company with any of the requirements of Section 148 of the Code or any applicable regulation, ruling or other judicial or administrative interpretation thereof; it being acknowledged and agreed that the sole obligation of the Trustee with respect to the investment of monies held under any fund or account created hereunder shall be to invest such monies in accordance with Section 4.03 hereof in each case pursuant to the instructions received by the Trustee in accordance with Section 4.03 hereof. 29 Section 6.05. Rights Under Agreement. The Agreement, a duly executed counterpart of which has been filed with the Trustee, sets forth the covenants and obligations of the Issuer and the Company, and reference is hereby made to the same for a detailed statement of said covenants and obligations of the Company thereunder; and the Issuer agrees that the Trustee in its own name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Agreement for and on behalf of the Bondholders, whether or not the Issuer is in default hereunder. Section 6.06. Designation of Additional Paying Agents. The Issuer may cause, with the consent of the Company, the necessary arrangements to be made through the Trustee and to be thereafter continued for the designation of additional paying agents and for providing for the payment of such of the Bonds as shall be presented when due at the corporate trust office of the Trustee, or its successor in trust hereunder, or at the principal office of said additional paying agents. All such funds held by said additional paying agents shall be held by each of them in trust and shall constitute a part of the trust estate and shall be subject to the security interest created hereby. Section 6.07. Existence of Issuer. The Issuer covenants that it will at all times maintain its corporate existence and will duly procure any necessary renewals and extensions thereof; will use its best efforts to maintain, preserve and renew all the rights, powers, privileges and franchises owned by it; and will comply with all valid acts, rules, regulations and orders of any legislative, executive, judicial or administrative body applicable to the Project. ARTICLE VII DISCHARGE OF INDENTURE Section 7.01. Bonds Deemed Paid; Discharge of Indenture. Any Bond will be deemed paid for all purposes of this Indenture when (a) payment of the principal of and interest on the Bond to the due date of such principal and interest (whether at maturity, upon redemption or otherwise) or the payment of the purchase price either (1) has been made in accordance with the terms of the Bonds or (2) has been provided for by depositing with the Trustee in trust (A) moneys sufficient to make such payment and/or (B) Government Obligations maturing as to principal and interest in such amounts and at such times as will insure, without any further reinvestment, the availability of sufficient moneys to make such payment, and (b) all compensation and reason- able expenses of the Trustee pertaining to each Bond in respect of which such deposit is made have been paid or provided for to the Trustee's satisfaction. When a Bond is deemed paid, it will 30 no longer be secured by or entitled to the benefits of this Indenture or be an obligation of the Issuer, and shall be payable solely from the moneys or Government Obligations under (a)(2) above, except that such Bond may be tendered if and as provided in the Bonds and it may be registered as transferred, exchanged, registered, discharged from registration or replaced as provided in Article II. Notwithstanding the foregoing, upon the deposit of funds or Government Obligations under clause (a)(2) of the first paragraph of this Section, the purchase price of tendered Bonds shall be paid from the sale of Bonds under Section 3.08. If payment of such purchase price is not made from the sale of Bonds pursuant to Section 3.08, payment shall be made from funds (or Government Obligations) on deposit pursuant to this Section without the need of any further instruction or direction by the Company, in which case such Bonds shall be surrendered to the Trustee and cancelled. Notwithstanding the foregoing, no deposit under clause (a)(2) of the first paragraph of this Section shall be deemed a payment of a Bond until the (1) Company has furnished the Trustee an Opinion of Tax Counsel to the effect that the deposit of such cash or Government Obligations will not cause the Bonds to become "arbitrage bonds" under Section 148 of the Code and (2) (a) notice of redemption of the Bond is given in accordance with Article III or, if the Bond is not to be redeemed or paid within the next 60 days, until the Company has given the Trustee, in form satisfactory to the Trustee, irrevocable instructions (i) to notify, as soon as practicable, the owner of the Bond, in accordance with Article III, that the deposit required by (a)(2) above has been made with the Trustee and that the Bond is deemed to be paid under this Article and stating the maturity or redemption date upon which moneys are to be available for the payment of the principal of the Bond, and premium, if any, and interest on such Bond, if the Bond is to be redeemed rather than paid and (ii) to give notice of redemption not less than 30 nor more than 60 days prior to the redemption date for such Bond or (b) the maturity of the Bond. When all outstanding Bonds are deemed paid under the foregoing provisions of this Section, the Trustee will upon request acknowledge the discharge of the lien of this Indenture, provided, however that the obligations relating to the tender for purchase as provided in the Bonds and obligations under Article II in respect of the registration of transfer, exchange, registration, discharge from registration and replacement of Bonds shall survive the discharge of the lien of the Indenture. Section 7.02. Application of Trust Money. The Trustee shall hold in trust money or Government Obligations deposited with it pursuant to the preceding Section and shall apply the deposited money and the money from the Government Obligations in accordance with this Indenture only to the payment of principal of, premium, if any, and interest on the Bonds and to the payment of the purchase price of tendered Bonds. 31 Section 7.03. Repayment to Company. The Trustee shall promptly pay to the Company upon request any excess money or securities held by the Trustee at any time under this Article and any money held by the Trustee under any provision of this Indenture for the payment of principal or interest or for the purchase of Bonds that remains unclaimed for six years. ARTICLE VIII DEFAULTS AND REMEDIES Section 8.01. Events of Default. An "Event of Default" is any of the following: (a) Default in the payment of any interest on any Bond when due and as the same shall become due and payable, which default continues for five days. (b) Default in the due and punctual payment of principal on any Bond when due and payable, whether at maturity, upon redemption, or by declaration or otherwise. (c) Default in the due and punctual payment of the purchase price of any Bond required to be purchased in accordance with its terms. (d) Acceleration for any reason of the maturity of all first mortgage bonds issued by the Company under the Company Indenture, and such acceleration shall not have been rescinded. (e) An event of default has occurred and is continuing under the Agreement. Section 8.02. Acceleration. Upon the occurrence of an Event of Default the Trustee may, and upon the written request of the holders of not less than 25% in aggregate principal amount of Bonds then outstanding shall, by notice in writing delivered to the Issuer and the Company, declare the principal of all Bonds then outstanding and the interest accrued thereon immediately due and payable; and such principal and interest shall thereupon become and be immediately due and payable. If after the principal of the Bonds and the accrued interest thereon have been so declared to be due and payable, all arrears of interest and interest on overdue installments of interest (if lawful) and the principal and premium, if any, on all Bonds then outstanding which shall have become due and payable otherwise than by acceleration and all other sums payable under this Indenture or upon the Bonds, except the principal of, and interest on, the Bonds which by such declaration shall have become due and payable, are paid by the Issuer, and the Issuer 32 also performs all other things in respect of which it may have been in default hereunder and pays the reasonable charges of the Trustee, the Bondholders and any trustee appointed under law, including the Trustee's reasonable attorneys' fees, then, and in every such case, the Trustee shall annul such declaration and its consequences, and such annulment shall be binding upon all holders of Bonds issued hereunder; but no such annulment shall extend to or affect any subsequent default or impair any right or remedy consequent thereon. The Trustee shall forward a copy of any such annulment notice pursuant to this paragraph to the Issuer and the Company. Immediately upon such annulment, the Trustee shall cancel, by notice to the Mortgage Trustee, any demand made by the Trustee pursuant to the Company Indenture. Section 8.03. Other Remedies. If an Event of Default occurs and is continuing, subject to Section 8.06, the Trustee, before or after declaring the principal of the Bonds and the interest accrued thereon immediately due and payable, may, and upon request of the holders of at least 25% in principal amount of the Bonds then outstanding shall, pursue any available remedy by proceeding at law or in equity available to the Trustee under the Agreement, the Note or the First Mortgage Bonds to collect the principal of or interest on the Bonds or the First Mortgage Bonds or to enforce the performance of any provision of the Bonds, the Note, this Indenture or the Agreement. The Trustee, as the assignee of all the right, title and interest of the Issuer in and to the Agreement, the Note and the First Mortgage Bonds, may enforce each and every right granted to the Issuer under the Agreement, the Note and the First Mortgage Bonds. In exercising such rights and the rights given the Trustee under this Article VIII, the Trustee shall take such action as, in the judgment of the Trustee applying the standards described in Section 9.01(a) hereof, would best serve the interests of the Bondholders. Section 8.04. Legal Proceeding by Trustee. If any Event of Default has occurred and is continuing, the Trustee in its discretion may, and upon the written request of the holders of not less than 25% in principal amount of all Bonds then outstanding and receipt of indemnity to its satisfaction shall, in its own name: (a) by mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Bondholders, including the right to require the Issuer to enforce any rights under the Agreement and to require the Issuer to carry out any other provisions of this Indenture for the benefit of the Bondholder and to perform its duties under the Act; (b) bring suit upon the Bonds; 33 (c) by action or suit in equity require the Issuer to account as if it were the trustee of an express trust for the Bondholders; or (d) by action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Bondholders. No remedy conferred upon or reserved to the Trustee or to the Bondholders by the terms of this Indenture is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Bondholders hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such default or Event of Default or acquiescence therein; and every such right and power may be exercised from time to time as often as may be deemed expedient. No waiver of any default or Event of Default hereunder, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent default or event of default or shall impair any rights or remedies consequent thereon. Section 8.05. Appointment of Receivers. Upon the occurrence and continuance of an Event of Default, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Bondholders under this Indenture, the Trustee shall be entitled as a matter of right to the appointment of a receiver or receivers of the trust estate with such powers as the court making such appointment shall confer. Section 8.06. Waiver of Past Defaults. The holders of a majority in principal amount of the Bonds then outstanding by notice to the Trustee may waive an existing Event of Default and its consequences. When an Event of Default is waived, it is cured and stops continuing, but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent to it. Section 8.07. Control by Majority. The holders of a majority in principal amount of the Bonds then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 9.01, that the Trustee determines is 34 unduly prejudicial to the rights of other Bondholders, or would involve the Trustee in personal liability. Section 8.08. Limitation on Suits. A Bondholder may not pursue any remedy with respect to this Indenture or the Bonds unless (a) the holder gives the Trustee notice stating that an Event of Default is continuing, (b) the holders of at least 25% in principal amount of the Bonds then outstanding make a written request to the Trustee to pursue the remedy, (c) such holder or holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense and (d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; it being understood and intended that no one or more holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by its, his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal and ratable benefit of the holders of all Bonds then outstanding. Nothing in the Indenture contained shall, however, affect or impair the right of any Bondholder to enforce the payment of the principal of and premium, if any, and interest on any Bond at and after the maturity thereof, or the obligation of the Issuer to pay the principal of and premium, if any, and interest on each of the Bonds issued hereunder to the respective holders thereof at the time and place, from the source and in the manner in the Bonds expressed. A Bondholder may not use this Indenture to prejudice the rights of another Bondholder or to obtain a preference or priority over the other Bondholders. Section 8.09. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any holder to receive payment of principal of and interest on a Bond, on or after the due dates expressed in the Bond, or the purchase price of a Bond on or after the date for its purchase as provided in the Bond, or to bring suit for the enforcement of any such payment on or after such dates, shall not be impaired or affected without the consent of the holder. Section 8.10. Collection Suit by Trustee. If an Event of Default under Section 8.01(a), (b) or (c) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount remaining unpaid. Section 8.11. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Bondholders allowed in any judicial 35 proceedings relative to the Company, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the holders in any election of a trustee in bankruptcy or other person performing similar functions. In the event of a bankruptcy or reorganization of the Company, the Trustee may file a proof of claim on behalf of all Bondholders with respect to the obligations of the Company pursuant to the Agreement and the Note, including a proof of claim with respect to the obligation of the Company under the First Mortgage Bonds, and any such claim with respect to the First Mortgage Bonds shall reduce the claim of the Mortgage Trustee pro tanto. Section 8.12. Priorities. If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order: FIRST: To the Trustee for amounts to which it is entitled under Section 9.02. SECOND: To Bondholders for amounts due and unpaid on the Bonds for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Bonds for principal and interest, respectively. THIRD: To the Company. The Trustee may fix a payment date for any payment to the Bondholders. Section 8.13. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a holder pursuant to Section 8.07 or a suit by holders of more than 10% in principal amount of the Bonds then outstanding. ARTICLE IX TRUSTEE AND REMARKETING AGENT Section 9.01. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions: 36 (a) The Trustee, prior to the occurrence of any Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent corporate trustee would exercise or use under the circumstances in the enforcement of a corporate indenture. (b) The Trustee may execute any of the trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees selected by it with reasonable care and the Trustee shall not be responsible for the conduct of such attorneys, agents, receivers or employees, if selected with reasonable care, and shall be entitled to advice of counsel concerning all matters relating to the trusts hereof and the duties hereunder, and may in all cases pay such reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trusts hereof. The Trustee may act upon the opinion or advice of any attorney (who may be the attorney or attorneys for the Issuer or the Company), approved by the Trustee in the exercise of reasonable care. The Trustee shall not be responsible for any loss or damage resulting from any action or inaction in good faith in reliance upon such opinion or advice. (c) The Trustee shall not be responsible for any recital herein, or in the Bonds (except in respect to the certificate of the Trustee endorsed on the Bonds), or for the recording or re-recording, filing or re-filing of this Indenture, or any other instrument required by this Indenture to secure the Bonds, or for insuring the Project or collecting any insurance moneys, or for validity of the execution by the Issuer of this Indenture or of any supplements hereto or instruments of further assurance, or for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby. (d) The Trustee shall not be accountable for the use of any Bonds authenticated or delivered hereunder. The Trustee may become the owner of Bonds secured hereby with the same rights which it would have if not the Trustee. To the extent permitted by law, the Trustee may also receive tenders and purchase in good faith Bonds from itself, including any department, affiliate or subsidiary, with like effect as if it were not the Trustee. 37 (e) The Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the owner of any Bond, shall be conclusive and binding upon all future owners of the same Bond and upon owners of Bonds issued in exchange therefor or in place thereof. (f) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate signed by the Issuer or the Company as sufficient evidence of the facts therein contained; and prior to the occurrence of a default of which the Trustee has been notified as provided in subsection (h) of this Section 9.01, or of which by said subsection it is deemed to have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or expedient, but may at its discretion secure such further evidence deemed necessary or advisable, but shall in no case be bound to secure the same. The Trustee may accept a certificate of the Secretary or Assistant Secretary of the Issuer under the Issuer's seal to the effect that a resolution in the form therein set forth has been adopted by the Issuer as conclusive evidence that such resolution has been duly adopted, and is in full force and effect. (g) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and it shall not be answerable for other than its negligence or willful default. (h) The Trustee shall not be required to take notice or be deemed to have notice of any Event of Default hereunder except failure by the Issuer to cause to be made any of the payments to the Trustee required to be made by Article IV hereof, unless the Trustee shall be specifically notified in writing of such Event of Default by the Issuer or by the holders of at least 25% in aggregate principal amount of Bonds then outstanding; and all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the principal corporate trust office of the Trustee, and in the absence of such notice so delivered the Trustee may conclusively assume there is no default except as aforesaid. 38 (i) At any and all reasonable times the Trustee and its duly authorized agents, attorneys, experts, engineers, accountants and representatives shall have the right fully to inspect any and all parts of the Project, including all books, papers and records of the Issuer pertaining to the Project and the Bonds and to take such memoranda from and in regard thereto as may be desired. (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises. (k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall have the right, but shall not be required, to demand, in respect of the authentication of any Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action by the Trustee, which the Trustee in its discretion may deem desirable for the purpose of establishing the right of the Issuer to the authentication of any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee. (l) Before taking any action referred to in Section 8.02, 8.03, 8.04, 8.05, 8.08, 8.09, 8.10, 8.11 or 9.04 hereunder, the Trustee may require that a satisfactory indemnity bond be furnished for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its negligence or willful default by reason of any action so taken. (m) All moneys received by the Trustee or any paying agent shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds except to the extent required herein or by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received hereunder except such as may be mutually agreed upon. (n) No provision of the Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. Section 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall be entitled to payment and reimbursement for 39 reasonable fees for its services rendered hereunder and all advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee in connection with such services. Upon an Event of Default, but only upon an Event of Default, the Trustee shall have a first lien, with right of payment prior to payment on account of principal of and premium, if any, and interest on any Bond, upon the trust estate for the foregoing fees, charges and expenses incurred by it. Section 9.03. Notice to Bondholders if an Event of Default Occurs. If an Event of Default occurs of which the Trustee is by Section 9.01(h) hereof required to take notice or if notice of an Event of Default be given as in Section 9.01(h) provided, then the Trustee shall promptly give written notice thereof by registered or certified mail to each owner of Bonds then outstanding. Section 9.04. Intervention by Trustee. In any judicial proceeding to which the Issuer is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of the owners of the Bonds, the Trustee may intervene on behalf of the Bondholders and shall do so if requested in writing by the owners of at least 25% of the aggregate principal amount of Bonds then outstanding. The rights and obligations of the Trustee under this Section 9.04 are subject to the approval of a court of competent jurisdiction. Section 9.05. Successor Trustee. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its trust business and assets as a whole or substantially as a whole or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor Trustee hereunder and vested with all of the title to the trust estate and all the trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 9.06. Resignation by Trustee. The Trustee and any successor Trustee may at any time resign from the trusts hereby created by giving thirty days' written notice to the Issuer and the Company, served personally or sent by registered or certified mail, and to each owner of Bonds then outstanding, sent by registered or certified mail, and such resignation shall take effect at the end of such thirty days, or upon the earlier appointment of a successor Trustee pursuant to Section 9.08 hereof. 40 Section 9.07. Removal of Trustee. The Trustee may be removed at any time, by an instrument or concurrent instruments in writing delivered to the Trustee and to the Issuer and the Company, and signed by the owners of a majority in aggregate principal amount of Bonds then outstanding. Section 9.08. Appointment of Successor Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor shall be appointed by the Issuer at the direction of the Company. The Issuer shall cause notice of such appointment to be given in the same manner as the giving of notices of redemption as set forth in Section 3.04 hereof. If the Issuer fails to make such appointment promptly, a successor may be appointed by the owners of a majority in aggregate principal amount of Bonds then outstanding. Every such successor Trustee appointed pursuant to the provisions of this Section 9.08 shall be a trust company or bank in good standing having a reported capital, surplus and undivided profits of not less than $25,000,000, if there be such an institution willing, qualified and able to accept the trusts upon reasonable and customary terms. Section 9.09. Concerning Any Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer an instrument in writing accepting such appointment hereunder, and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all of the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of the Issuer, or of its successor, execute and deliver an instrument transferring to such successor Trustee all the estates, properties, rights, powers and trusts of such predecessor hereunder, and every predecessor Trustee shall deliver all securities and moneys held by it as Trustee hereunder to its successor. Should any instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. The resignation of any Trustee and the instrument or instruments removing any Trustee and appointing a successor hereunder, together with all other instruments provided for in this Article IX, shall be filed and/or recorded by the successor Trustee in each recording office where the Indenture shall have been filed and/or recorded and the successor Trustee shall bear the cost thereof. 41 Section 9.10. Successor Trustee as Bond Registrar and Paying Agent. In the event of a change of Trustee, the Trustee which has resigned or been removed shall cease to be bond registrar and a paying agent for principal of and premium, if any, and interest on the Bonds, and the successor Trustee shall become such bond registrar and a paying agent. Section 9.11. Trustee and Issuer Required to Accept Directions and Actions of Company. Whenever, after a reasonable request by the Company, the Issuer shall fail, refuse or neglect to give any direction to the Trustee or to require the Trustee to take any action which the Issuer is required to have the Trustee take pursuant to the provisions of the Agreement or this Indenture, the Company as agent of the Issuer may give any such direction to the Trustee or require the Trustee to take any such action, and the Trustee is hereby irrevocably empowered and directed to accept such direction from the Company as sufficient for all purposes of this Indenture. The Company shall have the right as agent of the Issuer to cause the Trustee to comply with any of the Trustee's obligations under this Indenture to the same extent that the Issuer is empowered so to do. Certain actions or failures to act by the Issuer under this Indenture may create or result in an Event of Default under this Indenture and the Company, as agent of the Issuer, may to the extent permitted by law, perform any and all acts or take such action as may be necessary for and on behalf of the Issuer to prevent or correct said Event of Default and the Trustee shall take or accept such performance by the Company as performance by the Issuer in such event. The Issuer hereby makes, constitutes and appoints the Company irrevocably as its agent to give all directions, do all things and perform all acts provided, and to the extent so provided, by this Section 9.11. Section 9.12. No Transfer of Note or First Mortgage Bonds Held by the Trustee; Exception. Except as required to effect an assignment to a successor Trustee, the Trustee shall not sell, assign or transfer the Note or First Mortgage Bonds, and the Trustee is authorized to enter into an agreement with the Company to such effect, including a consent to the issuance of stop transfer instructions to the Mortgage Trustee. Section 9.13. Filing of Certain Continuation Statements. From time to time, the Trustee shall duly file, or cause to be filed, at the expense of the Company, continuation statements for the purpose of continuing without lapse the effectiveness of the filing of the financing statements with respect to the security interest created by this Indenture in the Agreement, the Note and the First Mortgage Bonds, at or prior to the issuance of the Bonds and any previously filed continuation 42 statements which shall have been filed as herein required. The Issuer shall sign and deliver to the Trustee or its designee such continuation statements as may be requested of it from time to time by the Trustee. Upon the filing of any such continuation statements the Trustee shall immediately notify the Issuer and the Company that the same has been accomplished. Section 9.14 Duties of Remarketing Agent. The Remarketing Agent will set the interest rates on the Bonds and perform the other duties provided for in Section 2.02 and will remarket the Bonds as provided in Section 3.08, subject to any provisions of a remarketing agreement between the Company and the Remarketing Agent. The Remarketing Agent may for its own account or as broker or agent for others deal in Bonds and may do anything any other Bondholder may do to the same extent as if the Remarketing Agent were not serving as such. Section 9.15 Eligibility of Remarketing Agent. The initial Remarketing Agent appointed under this Indenture is Lehman Brothers Inc. The Remarketing Agent will be a bank, trust company or member of the National Association of Securities Dealers, Inc. organized and doing business under the laws of the United States or any state or the District of Columbia, will have a combined capital stock, surplus and undivided profits of at least $15,000,000 as shown in its most recent published annual report, will be a Participant in the Securities Depository and will be authorized by law to perform all the duties imposed upon it by this Indenture. Any successor Remarketing Agent shall be rated at least Baa3/P-3 or otherwise qualified by Moody's Investors Service, Inc. or have an equivalent rating of another rating agency. Section 9.16 Replacement of Remarketing Agent. The Remarketing Agent may resign by notifying the Issuer, Trustee and Company. Such resignation will take effect on the day a successor Remarketing Agent appointed in accordance with this Section has accepted the appointment or, if no successor has so accepted, 30 days after notice of resignation has been sent. The Company may remove the Remarketing Agent at any time by an instrument signed by the Company and filed with the Remarketing Agent, the Issuer and the Trustee at least 30 days prior to the effective date of such removal (which will not in any event occur prior to the appointment of a successor Remarketing Agent). A new Remarketing Agent may be appointed by the Company upon the resignation or removal of the Remarketing Agent. The Trustee shall promptly notify the Bondholders of any change in the Remarketing Agent. Section 9.17. Compensation of Remarketing Agent. The Remarketing Agent will not be entitled to any compensation from the Issuer, the Trustee or any property held under this Indenture 43 but must make separate arrangements with the Company for compensation. Section 9.18. Successor Remarketing Agent. If the Remarketing Agent consolidates with, merges or converts into, or transfers all or substantially all its assets (or, in the case of a bank or trust company, its corporate trust assets) to another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Remarketing Agent, provided that such successor shall be eligible under the applicable provisions in this Article. ARTICLE X AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE Section 10.01. Without Consent of Bondholders. The Issuer and the Trustee may amend or supplement this Indenture or the Bonds without notice to or consent of any Bondholder: (a) to cure any ambiguity, inconsistency or formal defect or omission, (b) to grant to the Trustee for the benefit of the Bondholders additional rights, remedies, powers or authority, (c) to subject to this Indenture additional collateral or to add other agreements of the Issuer, (d) to modify this Indenture or the Bonds to permit qualification under the Trust Indenture Act of 1939, as amended, or any similar federal statute at the time in effect, or to permit the qualification of the Bonds for sale under the securities laws of any state of the United States, (e) to authorize different authorized denominations of the Bonds and to make correlative amendments and modifications to this Indenture regarding exchangeability of Bonds of different authorized denominations, redemptions of portions of Bonds of particular authorized denominations and similar amendments and modifications of a technical nature, (f) to increase or decrease the number of days specified for the giving of notices in Section 2.02 and to make corresponding changes to the period for notice of redemption of the Bonds; provided that no decreases in any such number of days shall become effective except while the Bonds bear interest at a Daily Rate or a Weekly Rate and until 30 days after the Trustee has given notice to the owners of the Bonds, 44 (g) to provide for an uncertificated system of registering the Bonds or to provide for the change to or from a Book-Entry System for the Bonds, (h) to evidence the succession of a new Trustee or the appointment by the Trustee or the Issuer of a co- trustee, or (i) to make any change (including a change in Section 4.01 to reflect any amendment to the Code or interpretations by the Internal Revenue Service of the Code) that does not materially adversely affect the rights of any Bondholder. Section 10.02. With Consent of Bondholders. If an amendment of or supplement to this Indenture or the Bonds without any consent of Bondholders is not permitted by the preceding Section, the Issuer and the Trustee may enter into such amendment or supplement without prior notice to any Bondholders but with the consent of the holders of at least a majority in principal amount of the Bonds then outstanding. However, without the consent of each Bondholder affected, no amendment or supplement may (a) extend the maturity of the principal of, or interest on, any Bond or the First Mortgage Bonds, (b) reduce the principal amount of, or rate of interest on, any Bond or the First Mortgage Bonds, (c) effect a privilege or priority of any Bond or Bonds over any other Bond or Bonds, (d) reduce the percentage of the principal amount of the Bonds required for consent to such amendment or supplement, (e) impair the exclusion from federal gross income of interest on any Bond, (f) eliminate the holders' rights to tender the Bonds, or any mandatory redemption of the Bonds, extend the due date for the purchase of Bonds tendered by the holders thereof or call for mandatory redemption or reduce the purchase or redemption price of such Bonds, (g) create a lien ranking prior to or on a parity with the lien of this Indenture on the property described in the Granting Clause of this Indenture or (h) deprive any Bondholder of the lien created by this Indenture on such property. In addition, if moneys or Government Obligations have been deposited or set aside with the Trustee pursuant to Article VII for the payment of Bonds and those Bonds shall not have in fact been actually paid in full, no amendment to the provisions of that Article shall be made without the consent of the holder of each of those Bonds affected. Section 10.03. Effect of Consents. Any consent received pursuant to Section 10.02 will bind each Bondholder delivering such consent and each subsequent holder of a Bond or portion of a Bond evidencing the same debt as the consenting holder's Bond. Section 10.04. Notation on or Exchange of Bonds. If an amendment or supplement changes the terms of a Bond, the Trustee may require the holder to deliver it to the Trustee. The Trustee may place an appropriate notation on the Bond about the changed 45 terms and return it to the holder. Alternatively, if the Trustee, the Issuer and the Company determine, the Issuer in exchange for the Bond will issue and the Trustee will authenticate a new Bond that reflects the changed terms. Section 10.05. Signing by Trustee of Amendments and Supplements. The Trustee will sign any amendment or supplement to the Indenture or the Bonds authorized by this Article if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing an amendment or supplement, the Trustee will be entitled to receive and (subject to Section 9.01) will be fully protected in relying on an Opinion of Counsel stating that such amendment or supplement is authorized by this Indenture. Section 10.06. Company Consent Required. An amendment or supplement to this Indenture or the Bonds shall not become effective unless the Company delivers to the Trustee its written consent to the amendment or supplement. Section 10.07. Notice to Bondholders. The Trustee shall cause notice of the execution of each supplement or amendment to this Indenture or the Agreement to be mailed to the Bondholders. The notice will at the option of the Trustee, either (i) briefly state the nature of the amendment or supplement and that copies of it are on file with the Trustee for inspection by Bondholders or (ii) enclose a copy of such amendment or supplement. ARTICLE XI AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT, OR FIRST MORTGAGE BONDS Section 11.01. Without Consent of Bondholders. The Issuer may enter into, and the Trustee may consent to, any amendment of or supplement to the Agreement, or may waive compliance by the Company of any provision of the Agreement, and the Trustee, as holder of the First Mortgage Bonds, may consent to any amendment of or supplement to the Company Indenture or the First Mortgage Bonds, in each case without notice to or consent of any Bondholder, if the amendment, supplement or waiver is required or permitted (a) by the provisions of the Agreement or this Indenture, (b) to cure any ambiguity, inconsistency or formal defect or omission, (c) to identify more precisely the Project, (d) in connection with any authorized amendment of or supplement to this Indenture or (e) to make any change that in the judgment of the Trustee does not materially adversely affect the rights of any Bondholder. Section 11.02. With Consent of Bondholders. If an amendment of or supplement to the Agreement, the Company Indenture or the 46 First Mortgage Bonds without any consent of Bondholders is not permitted by the foregoing Section, the Issuer may enter into, and/or the Trustee may consent to (as the case may be), such amendment or supplement, or may waive compliance by the Company of any provision of the Agreement, without notice to any Bondholder but with the consent of the holders of at least a majority in principal amount of the Bonds then outstanding. However, without the consent of each Bondholder affected, no amendment, supplement or waiver may result in anything described in the lettered clauses of Section 10.02. Section 11.03. Consents by Trustee to Amendments or Supplements. The Trustee will consent to any amendment or supplement to the Agreement, the Company Indenture or the First Mortgage Bonds authorized by this Article if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing a consent to an amendment or supplement, the Trustee shall be entitled to receive and (subject to Section 9.01) shall be fully protected in relying on an Opinion of Counsel stating that such amendment or supplement is authorized or permitted by this Indenture. ARTICLE XII VOTING OF FIRST MORTGAGE BONDS Section 12.01. Voting of Mortgage Bond Held by the Trustee. The Trustee, as a holder of First Mortgage Bonds, shall attend any meeting of bondholders under the Company Indenture as to which it receives due notice. Either at such meeting, or otherwise where consent of holders of first mortgage bonds of the Company is sought without a meeting, the Trustee shall vote as such holder, or shall consent with respect thereto, proportionately with what the Trustee reasonably believes will be the vote or consent of all other first mortgage bonds of the Company then outstanding and eligible to vote or consent. Notwithstanding the foregoing, the Trustee shall not vote as such holder in favor of, or give its consent to, any action which, in the Trustee's opinion, would materially adversely affect the interests of the Bondholders, except upon notification by the Trustee to the Bondholders of such proposal and consent thereto of the holders of at least 50% in aggregate principal amount of the Bonds then outstanding and, if such proposal would so affect the rights of some but less than all the outstanding Bonds, the consent thereto of the holders of at least 50% in aggregate principal amount of the Bonds so affected. 47 ARTICLE XIII MISCELLANEOUS Section 13.01. Notices. (a) Any notice, request, direction, designation, consent, acknowledgment, certification, appointment, waiver or other communication required or permitted by this Indenture or the Bonds must be in writing except as expressly provided otherwise in this Indenture or the Bonds. (b) Any notice or other communication shall be sufficiently given and deemed given when delivered by hand or mailed by first- class mail, postage prepaid, addressed as follows: if to the Issuer, c/o Board of Commissioners of Monroe County, Forsyth, Georgia 31029; if to the Trustee, to 214 Hogan Street, 2nd Floor, Jacksonville, Florida 32202, Attention: Corporate Trust Department; if to the Company, at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention: Treasurer, with copies to Southern Company Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346, Attention: Corporate Finance Department; and if to the Remarketing Agent, to Lehman Brothers Inc., American Express Tower, World Financial Center, New York, New York 10285, Attention: Short-term Municipal Desk. Any addressee may designate additional or different addresses for purposes of this Section. Section 13.02. Bondholders' Consents. Any consent or other instrument required by this Indenture to be signed by Bondholders may be in any number of concurrent documents and may be signed by a Bondholder or by the holder's agent appointed in writing. Proof of the execution of such instrument or of the instrument appointing an agent and of the ownership of Bonds, if made in the following manner, shall be conclusive for any purposes of this Indenture with regard to any action taken by the Trustee under the instrument: (a) The fact and date of a person's signing an instrument may be proved by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments within that jurisdiction that the person signing the writing acknowledged before the officer the execution of the writing, or by an affidavit of any witness to the signing. (b) The fact of ownership of Bonds, the amount or amounts, numbers and other identification of such Bonds and the date of holding shall be proved by the registration books kept pursuant to this Indenture. In determining whether the holders of the required principal amount of Bonds outstanding have taken any action under this Indenture, Bonds owned by the Company or any person controlling, 48 controlled by or under common control with the Company shall be disregarded and deemed not to be outstanding. In determining whether the Trustee shall be protected in relying on any such action, only Bonds which the Trustee knows to be so owned shall be disregarded. Any consent or other instrument shall be irrevocable and shall bind any subsequent owner of such Bond or any Bond delivered in substitution therefor. Section 13.03. Appointment of Separate Paying Agent and/or Tender Agent. If, at any time, the Securities Depository ceases to hold the Bonds, with the effect that the Bonds are no longer subject to the Book-Entry System, then the Issuer and the Trustee, acting at the request of the Company, may appoint one or more banks or trust companies to act as paying agent and/or tender agent for the Bonds hereunder. In addition, the Trustee, acting at the request of the Company, at any time may appoint such a paying agent and/or tender agent. Any such paying agent or tender agent shall be a bank or trust company organized under the laws of the United States of America or any state thereof, shall have a reported capital and surplus of at least $100,000,000 and (if the Book-Entry System is no longer in effect as aforesaid) a corporate trust office located in New York, New York at which Bonds may be presented for payment or purchase and shall perform such duties and responsibilities as may be delegated to it hereunder. If such a paying agent or tender agent is appointed, then all references herein to the "Trustee" shall include such paying agent or tender agent to the extent of the duties performed by such entity. Section 13.04. Limitation of Rights. Nothing expressed or implied in this Indenture or the Bonds shall give any person other than the Trustee, Issuer, Company, Remarketing Agent and the Bondholders any right, remedy or claim under or with respect to this Indenture. Section 13.05. Severability. If any provision of this Indenture shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative or unenforceable to any extent whatsoever. Section 13.06. Payments Due on Non-Business Days. If a payment date is not a Business Day at the place of payment, then payment may be made at that place on the next Business Day, and no interest shall accrue for the intervening period. Section 13.07. Governing Law. This Indenture shall be governed exclusively by and construed in accordance with the applicable laws of the State. 49 Section 13.08. Captions. The captions in this Indenture are for convenience only and do not define or limit the scope or intent of any provisions or Sections of this Indenture. Section 13.09. No Liability of Officers. No covenant or agreement contained in the Bonds or this Indenture shall be deemed to be a covenant or agreement of any commissioner, agent or employee of the Issuer in his individual capacity, and neither the officers of the Issuer nor any official executing the Bonds or this Indenture shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds or the execution and delivery of this Indenture. Section 13.10. Counterparts. This Indenture may be signed in several counterparts. Each will be an original, but all of them together constitute the same instrument. 50 IN WITNESS WHEREOF, the Development Authority of Monroe County has caused these presents to be signed in its name and behalf and its official seal to be hereunto affixed and attested by its duly authorized officers, and to evidence its acceptance of the trusts hereby created First Union National Bank of Florida, as Trustee, has caused these presents to be signed in its name and behalf and its official seal to be hereunto affixed and attested by its duly authorized officers, all as of the day and year first above written. DEVELOPMENT AUTHORITY OF [SEAL] MONROE COUNTY By: /s/James A. Vaughan Chairman Attest: Marvin T. Carr, Jr. Secretary FIRST UNION NATIONAL BANK OF FLORIDA, as Trustee By: /s/Donna M. Fay Title: Assistant Vice President Attest: /s/Janalee R. Scott Title: Vice President EXHIBIT A UNITED STATES OF AMERICA STATE OF GEORGIA No. R-1 $20,000,000 DEVELOPMENT AUTHORITY OF MONROE COUNTY (GEORGIA) POLLUTION CONTROL REVENUE BOND (GULF POWER COMPANY PLANT SCHERER PROJECT) SECOND SERIES 1994 TYPE OF INTEREST MATURITY DATE DATED DATE CUSIP RATE PERIOD September 1, 2024 September 28, 1994 610530 CK 1 Daily REGISTERED OWNER: PRINCIPAL AMOUNT: Development Authority of Monroe County (the "Issuer"), a public body corporate and politic, duly created, activated and existing under the laws of the State of Georgia, for value received, hereby promises to pay, solely from the sources described in this Bond, to the Registered Owner identified above, or registered assigns, on the Maturity Date stated above (or if this Bond is called for earlier redemption as described herein, on the redemption date) the principal amount identified above and to pay interest as provided in this Bond. 1. Indenture; Agreement. This Bond is one of the bonds (the "Bonds"), limited to $20,000,000 in principal amount, issued under the Trust Indenture dated as of September 1, 1994 (the "Indenture"), between the Issuer and First Union National Bank of Florida, as trustee (the "Trustee"). The terms of the Bonds include those in the Indenture. Bondholders are referred to the Indenture for a statement of those terms. When used with reference to the Bonds, the term "principal" includes any premium payable on those Bonds. Capitalized terms used herein and not 52 otherwise defined shall have the meanings ascribed to them in the Indenture. The Issuer has entered into a Loan Agreement dated as of September 1, 1994 (the "Agreement") with Gulf Power Company, a Maine corporation (the "Company"). Under the provisions of the Agreement the Issuer has loaned the proceeds of the Bonds of this series to the Company (the "Loan"). In order to evidence the Loan and the Company's obligation to repay the same, the Company has executed and delivered its non-negotiable promissory note (the "Note"). The Note provides for the repayment by the Company of the Loan, including interest thereon, in installments sufficient to pay the principal of, purchase price and premium, if any, and interest on the Bonds as the same shall become due and payable, and the Agreement further obligates the Company to pay the cost of operating, maintaining and repairing the Project (as hereinafter defined). The Note provides that the payments thereunder shall be paid directly to the Trustee as assignee of the Issuer. The Issuer has assigned its rights to such payments under the Agreement and the Note to the Trustee as security for the Bonds. The proceeds of the Bonds will be used to refund certain outstanding revenue bonds issued to finance the interest of the Company in certain air and water pollution control and sewage and solid waste disposal facilities (the "Project") located at the Scherer steam electric generating plant (the "Plant") in Monroe County, Georgia. The Company has issued its First Mortgage Bonds, Second Pollution Control Series due September 1, 2024 in the aggregate principal amount of $20,000,000 (the "First Mortgage Bonds") pursuant to the Indenture dated as of September 1, 1941 from the Company to The Chase Manhattan Bank (National Association), as trustee, as supplemented and amended (the "Company Indenture"), to evidence and secure its obligation to pay the amounts due under the Note. The Indenture, the Agreement and the Note may be amended, and references to them include any amendments. The Issuer has established a book-entry only system of registration for the Bonds (the "Book-Entry System"). Except as specifically provided otherwise in the Indenture, a Securities Depository (or its nominee) will be the registered owner of this Bond. By acceptance of a confirmation of purchase, delivery or transfer, the Beneficial Owner (if any) of this Bond shall be deemed to have agreed to this arrangement. If the Securities Depository (or its nominee) is the registered owner of this Bond, it shall be treated as the owner of it for all purposes. 2. Source of Payments. The principal of, premium, if any, and interest on the Bonds are limited obligations of the Issuer and, as provided in the Indenture, are payable solely and only from payments derived from the Agreement and the Note, or from the First Mortgage Bonds, and from any other moneys held by the 53 Trustee under the Indenture for such purpose. The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Georgia, particularly the Development Authorities Law (O.C.G.A. Section 36-62-1, et seq., as amended), and pursuant to a resolution adopted by the Issuer on August 31, 1994, which resolution authorizes the execution and delivery of the Agreement and the Indenture. The Bonds and the interest thereon are limited special obligations of the Issuer and are payable solely from the revenues and other amounts derived from the Agreement, Note and First Mortgage Bonds and are secured as set forth in the Indenture. The Bonds and premium, if any, and interest thereon shall not be deemed to constitute a debt or general obligation or a pledge of the faith and credit of the State of Georgia or any political subdivision thereof, including the County of Monroe. Neither the State of Georgia nor any political subdivision thereof nor the Issuer shall be obligated to pay the principal of the Bonds or premium, if any, or interest thereon or other costs incident thereto except from the revenues and receipts pledged therefor, and neither the faith and credit nor the taxing power of the State of Georgia or any political subdivision thereof is pledged to the payment of the principal of the Bonds or premium, if any, or interest thereon or other costs incident thereto. Payments under the Note sufficient for the prompt payment when due of the principal of and premium, if any, and interest on the Bonds are to be paid to the Trustee by the Company for the account of the Issuer and deposited in a special account created by the Issuer and have been duly pledged and assigned for that purpose. In addition, substantially all other rights of the Issuer under the Agreement, including the Company's obligation to deliver to the Trustee concurrently with the issuance of the Bonds the First Mortgage Bonds, have also been assigned to the Trustee to secure payment of the principal of and premium, if any, and interest on the Bonds issued under the Indenture. 3. Interest Rate. Interest on this Bond will be paid at the lesser of (a) a Daily Rate, a Weekly Rate, a Commercial Paper Rate or a Long-Term Interest Rate as selected by the Company and as determined in accordance with the Indenture and (b) 15%. Interest will initially be payable at a Daily Rate as set forth in the Indenture. The Company may change the interest rate determination method from time to time. A change in the method will result in mandatory redemption of the Bonds (see "Redemption" below). While there exists an Event of Default under the Indenture, the interest rate on the Bonds will be the rate on the Bonds on the day before the Event of Default occurred, except that if interest on any Bond was then payable at a Commercial Paper Rate, the default rate for all Bonds then bearing interest at a Commercial Paper Rate will be the highest Commercial Paper Rate then in effect for any Bond. 54 When interest is payable at a Daily, Weekly or Commercial Paper Rate, it will be computed on the basis of the actual number of days elapsed over a year of 365 days (366 in leap years), and when payable at a Long-Term Interest Rate on the basis of a 360- day year of twelve 30-day months. Interest on overdue principal and, to the extent lawful, on overdue premium and interest will be payable at the rate on the Bonds on the day before the default occurred. 4. Interest Payment and Record Dates. Interest will accrue on the unpaid portion of the principal of this Bond from the Dated Date stated above and thereafter from the Interest Payment Date (as hereinafter defined) next preceding the date of authentication hereof to which interest has been paid or duly provided for, unless the date of authentication hereof is an Interest Payment Date to which interest has been paid or duly provided for, in which case from the date of authentication hereof, or unless no interest has been paid or duly provided for on the Bonds of this series, in which case from said Dated Date; provided, however, that if the date of authentication is between the Record Date (as hereinafter defined) for any Interest Payment Date and such Interest Payment Date, then interest will accrue from such Interest Payment Date or, if the Company shall default in payment of the interest due on such Interest Payment Date, then from the next preceding Interest Payment Date to which interest has been paid or duly provided for, or if no interest has been paid or duly provided for, then from said Dated Date. When interest is payable at the rate in the first column below, interest accrued during the period (an "Interest Period") shown in the second column will be paid on the date (an "Interest Payment Date") in the third column to holders of record on the date (a "Record Date") in the fourth column: 55 INTEREST RATE INTEREST PERIOD PAYMENT DATE RECORD DATE Daily* Calendar month Fifth Last Business Business Day Day of the next of the month month Weekly* Calendar month First Last Business Business Day Day of the next before month Interest Payment Date Commercial From 30 (or such Day after the Last Business Paper shorter period as last Day may be permitted day of before by the Securities Commercial Interest Depository) to Paper Period Payment Date 365 days as determined for each Bond pursuant to Section 2.02(a)(3) of the Indenture ("Commercial Paper Period") * If there shall be a change from a Daily Rate or a Weekly Rate on a day other than the first day of a calendar month, the then current Interest Period relating to such Daily Rate or Weekly Rate shall end on the day immediately preceding the date on which the new interest rate on the Bonds shall become effective, which date in the case of a change from a Weekly Rate, shall be the Interest Payment Date for such Interest Period, for which the Record Date shall be the immediately preceding Business Day; but in the case of a change from a Daily Rate, the Interest Payment Date for such Interest Period shall be the fifth Business Day after the last day of such Interest Period, for which the Record Date shall be the last Business Day of such Interest Period. If such new interest rate shall be a Daily Rate or a Weekly Rate, the first Interest Period relating thereto shall begin on the effective date of such new interest rate and end on the last day of the then current calendar month, for which the Interest Payment Date and the Record Date shall be as prescribed in this Table. 56 INTEREST RATE INTEREST PERIOD PAYMENT DATE RECORD DATE Long-Term** Six-month period Next day Fifteenth of or (March 1 the portion thereof or September month before ending the last 1) the day of February Interest or August Payment Date (February 15 or August 15) *** "Business Day" is defined in the Indenture. Payment of defaulted interest will be made to holders of record as of the fifth-to- last Business Day before payment. 5. Method of Payment. Holders must surrender Bonds to the Trustee to collect principal at maturity or upon redemption. (See "Tenders" below for the payment of purchase price of tendered Bonds.) Interest on Bonds bearing interest at a Commercial Paper Rate is payable only upon presentation of such Bonds to the Trustee. Interest on Bonds bearing interest at a Daily, Weekly or Long-Term Interest Rate will be paid to the registered holder hereof as of the Record Date by check mailed by first-class mail on the Interest Payment Date to such holder's **If there shall be a change from a Long-Term Interest Rate on a day other than the day after the last day of the then current Long-Term Interest Rate Period, or if there shall be an early termination of such Long-Term Interest Rate Period and a new Long-Term Interest Rate shall be set, such Long-Term Interest Rate Period shall end on the day immediately preceding the date on which the new interest rate shall become effective, which date shall be the Interest Payment Date for such Long-Term Interest Rate Period, for which the Record Date shall be 15 days prior to such Interest Payment Date or, if sooner, the first day of such Long-Term Interest Rate Period. If such new interest rate shall be a Daily Rate or a Weekly Rate, the first Interest Period relating thereto shall begin on the effective date of such new interest rate and end on the last day of the then current calendar month, for which the Interest Payment Date and the Record Date shall be as prescribed in this Table. ***If an Interest Payment Date occurs less than 15 days after the first day of a Long-Term Interest Rate Period, the first day of such Long-Term Interest Rate Period is the Record Date for such Interest Payment Date. 57 registered address. A holder of $1,000,000 or more in principal amount of Bonds may be paid interest at a Daily, Weekly or Commercial Paper Rate by wire transfer in immediately available funds to an account in the continental United States if the holder makes a written request of the Trustee (in form satisfactory to the Trustee) at least two Business Days before the Record Date specifying the account address. The notice may provide that it will remain in effect for later interest payments until changed or revoked by another written notice. Principal and interest will be paid in money of the United States that at the time of payment is legal tender for payment of public and private debts or by checks or wire transfers payable in such money. If any payment on the Bonds is due on a non-Business Day, it will be made on the next Business Day, and no interest will accrue as a result. 6. Tenders. "Tender" means to require, or the act of requiring, the Trustee to purchase a Bond at the holder's option under the provisions of this Section 6 at 100% of the principal amount plus interest accrued to the date of purchase. During a Daily Rate Period, if a Bond is tendered after the Record Date and before the Interest Payment Date for that Interest Period, the Trustee will pay (but only from funds available therefor as provided in the Indenture) a purchase price of principal plus interest accruing after the last day of that Interest Period. The holder will receive interest for that Interest Period by check or wire transfer as described in Section 5 above. Daily Rate Tender. When interest on the Bonds is payable at a Daily Rate and a Book-Entry System is in effect, a Beneficial Owner (through its direct Participant in the Securities Depository) may tender his interest in a Bond (or portion of Bond) by delivering an irrevocable written notice or an irrevocable telephone notice, promptly confirmed in writing, to the Trustee (any such telephone notice to be delivered to a trust officer of the Trustee) and an irrevocable notice by telephone, telegraph or facsimile transmission to the Remarketing Agent, in each case by 11:00 a.m., New York City time, on a Business Day, stating the principal amount of the Bond (or portion of Bond) being tendered, payment instructions for the purchase price and the Business Day (which may be the date the notice is delivered) the Bond (or portion of Bond) is to be purchased. The Beneficial Owner shall effect delivery of such Bonds by causing such direct Participant to transfer its interest in the Bonds equal to such Beneficial Owner's interest on the records of the Securities Depository to the participant account of the Trustee with the Securities Depository. Any notice received by the Trustee after 11:00 a.m., New York City time, shall be deemed to have been given on the next Business Day. 58 When interest on the Bonds is payable at a Daily Rate and a Book-Entry System is not in effect, a holder of a Bond may tender the Bond (or portion of Bond) by delivering the notices as described above (which shall include the certificate number of the Bond), and shall also deliver the Bond to the Trustee by 1:00 p.m., New York City time, on the date of purchase (see additional requirements below). Weekly Rate Tender. When interest on the Bonds is payable at a Weekly Rate and a Book-Entry System is in effect, a Beneficial Owner (through its direct Participant in the Securities Depository) may tender his interest in a Bond (or portion of Bond) by delivering an irrevocable written notice or an irrevocable telephone notice, promptly confirmed in writing, to the Trustee (any such telephone notice to be delivered to a trust officer of the Trustee) and an irrevocable notice by telephone, telegraph or facsimile transmission to the Remarketing Agent, in each case prior to 5:00 p.m., New York City time on a Business Day stating the principal amount of the Bond (or portion of Bond) being tendered, payment instructions for the purchase price, and the date, which must be a Business Day at least seven days after the notice is delivered, on which the Bond (or portion of Bond) is to be purchased. The Beneficial Owner shall effect delivery of such Bonds by causing such direct Participant to transfer its interest in the Bonds equal to such Beneficial Owner's interest on the records of the Securities Depository to the participant account of the Trustee with the Securities Depository. When interest on the Bonds is payable at a Weekly Rate and a Book-Entry System is not in effect, a holder of a Bond may tender the Bond (or portion of Bond) by delivering the notices as described above (which shall include the certificate number of the Bond), and shall also deliver the Bond to the Trustee by 1:00 p.m., New York City time, on the date of purchase (see additional requirements below). Payment of Purchase Price. The purchase price for a tendered Bond will be paid in immediately available funds to the registered owner of the Bond by the close of business on the date of purchase. 7. Delivery Address; Additional Delivery Requirements. Notices in respect of tenders and Bonds tendered must be delivered to the Trustee as follows: 59 First Union National Bank of Florida 214 Hogan Street, 2nd Floor Jacksonville, Florida 32202 Attention: Corporate Trust Department Telephone: (904) 361-1882 Fax: (904) 361-1596 Notices in respect of tenders shall be delivered to the Remarketing Agent as follows: Lehman Brothers Inc. American Express Tower World Financial Center New York, New York 10285 Attention: Short-term Municipal Desk Telephone: (212) 528-1011 Fax: (212) 528-2129 The delivery addresses or telephone numbers of the Trustee or the Remarketing Agent may be changed by notice mailed by first class mail to the Bondholders at their registered addresses. All tendered Bonds must be accompanied by an instrument of transfer satisfactory to the Trustee, executed in blank by the registered owner or his duly authorized attorney, with the signature guaranteed by an eligible guarantor institution. Limitation on Tenders. No Bonds may be tendered while they bear interest at a Commercial Paper Rate or a Long-Term Interest Rate. Irrevocable Notice Deemed to be Tender of Bond; Undelivered Bonds. The giving of notice by the registered owner of a Bond as provided in Section 6 constitutes the irrevocable tender for purchase of each Bond (or portion) with respect to which such notice was given, irrespective of whether such Bond was delivered as provided in Section 6. The determination of the Trustee as to whether a notice of tender has been properly delivered shall be conclusive and binding upon the Bondholders. The Trustee may refuse to accept delivery of any Bond for which a proper instrument of transfer has not been provided. If any owner of a Bond who gave notice fails to deliver his Bond to the Trustee at the place and on the applicable date and time specified, or fails to deliver his Bond properly endorsed, his Bond shall constitute an undelivered Bond as described in the Indenture. BY ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL AND SURRENDER THIS BOND, PROPERLY ENDORSED, TO THE TRUSTEE AFTER THE GIVING OF IRREVOCABLE NOTICE OF TENDER FOR PURCHASE AS DESCRIBED ABOVE. 60 8. Redemptions. As provided below, the Company has the right to purchase Bonds in lieu of certain redemptions. BY ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL AND SURRENDER THIS BOND, PROPERLY ENDORSED, TO THE COMPANY IN LIEU OF REDEMPTION UNDER THE CONDITIONS DESCRIBED BELOW. All redemptions and purchases in lieu of redemption will be made in funds immediately available on the redemption or purchase date and will be at a redemption or purchase price of 100% of the principal amount of the Bonds being redeemed or purchased (unless a premium is required as provided below) plus interest accrued to the redemption or purchase date, except that interest accruing at a Daily Rate will be paid on the fifth Business Day following the redemption or purchase date. Bonds tendered for purchase on a date after a call for redemption but before the redemption date will be purchased pursuant to the tender. No purchase of Bonds by the Company or advance use of any funds to effectuate any such purchase shall be deemed to be a payment or redemption of the Bonds or of any portion thereof and such purchase will not operate to extinguish or discharge the indebtedness evidenced by such Bonds. Optional Redemption at a Premium During Long-Term Interest Rate Period. During any Long-Term Interest Rate Period, if the Long-Term Interest Rate Period is less than or equal to five years, the Bonds will not be redeemable pursuant to this provision during the Long-Term Interest Rate Period. If the Long-Term Interest Rate Period is greater than five years, the Bonds will not be redeemable for five years after the date on which the Bonds begin to bear interest at the Long-Term Interest Rate. After the five year no-call period, the Bonds may be redeemed at any time in whole or in part at 102% of their principal amount. The premium will decline every year on the anniversary of the date on which the Bonds begin to bear interest at the Long-Term Interest Rate, by one percentage point until the Bonds are redeemable without premium. As an alternative to and in lieu of the foregoing redemption provisions, if, with respect to any Long-Term Interest Rate Period, a Favorable Opinion of Tax Counsel is delivered to the Trustee not later than the date of the establishment of such Long-Term Interest Rate Period, the Bonds may be redeemed during such Long-Term Interest Rate Period at the option of the Company in whole or in part at any time after a no-call period, if any, established by the Remarketing Agent, at the percentages of their principal amount, plus accrued interest, as follows: the Remarketing Agent shall, given the duration of the Long-Term Interest Rate Period, determine and inform the Trustee and the Company, on a date which is no later than the establishment of the Long-Term Interest Rate, the periods during which the Bonds shall not be subject to redemption (the "Call Protection Period"), the redemption premium or premiums (the "Call 61 Premiums"), if any, applicable to the redemption of Bonds after the Call Protection Period, and the period or periods during which the Call Premiums shall be effective (the "Call Premium Periods") necessary to establish the Long-Term Interest Rate. Such Call Protection Period, Call Premiums and Call Premium Periods shall be established in accordance with optional call redemption provisions which, in the judgment of the Remarketing Agent, are generally accepted as the standard features for obligations such as the Bonds, given the length of the Long-Term Interest Rate Period. Extraordinary Optional Redemption. The Bonds are subject to redemption in whole at any time upon receipt by the Trustee and the Issuer of a written notice from the Company stating that the Company has determined that: (i) Any federal, state or local body exercising governmental or judicial authority has taken any action which results in the imposition of unreasonable burdens or excessive liabilities with respect to the Project or the Company's portion of the Plant in connection with which the Project is used, rendering impracticable or uneconomical the operation of either the Project or such portion of the Plant, including, without limitation, the condemnation or taking by eminent domain of all or substantially all of the Project or such portion of the Plant; or (ii) Changes in the economic availability of raw materials, operating supplies or facilities or technological or other changes have made the continued operation of the Plant as an efficient generating facility uneconomical; or (iii) The Project or the Plant has been damaged or destroyed to such an extent that it is not practicable or desirable to rebuild, repair or restore the Project or the Plant. If the Issuer shall have received such notice by the Company, the Issuer, upon request of the Company, shall give written notice to the Trustee directing the Trustee to take all action necessary to redeem the outstanding Bonds in whole and on a date specified in such notice, which date shall be not less than forty-five (45) nor more than ninety (90) days from the date the notice is received by the Trustee. Optional Redemption During Daily or Weekly Rate Period. When interest on the Bonds is payable at a Daily or Weekly Rate, the Bonds may be redeemed in whole or in part at the option of the Company, on any Business Day. Mandatory Redemption at Beginning of a New Long-Term Interest Rate Period. When the Bonds bear interest at a Long- 62 Term Interest Rate and a new Long-Term Interest Rate is to be determined, the Bonds will be redeemed or purchased by the Company in lieu of redemption on the effective date of the new Long-Term Interest Rate. In the case of a change prior to the day originally established as the day after the last day of a Long-Term Interest Rate Period, the Bonds will be redeemed or purchased at the percentage of their principal amount which would be payable upon the applicable redemption described under "Optional Redemption at a Premium During Long-Term Interest Rate Period" above. Mandatory Redemption on Each Interest Payment Date During Commercial Paper Mode. When Bonds bear interest at a Commercial Paper Rate, each Bond will be redeemed or purchased by the Company in lieu of redemption on the Interest Payment Date for such Bond. If Bonds are scheduled to be redeemed under the following paragraph, the Bonds will be called under, and redemption will be governed by, that paragraph and not this paragraph. Mandatory Redemption Upon a Change in the Method of Determining the Interest Rate on the Bonds. On the effective date of the change in the method of determining the interest rate on the Bonds (the four methods being Daily, Weekly, Commercial Paper or Long-Term Interest Rates) the Bonds will be redeemed or purchased by the Company in lieu of redemption on the effective date of such change. Any such redemption or purchase shall be at a price equal to 100% of the principal amount of the Bonds, except that in the case of a change prior to the day originally established as the day after the last day of a Long-Term Interest Rate Period, the Bonds will be redeemed or purchased at the percentage of their principal amount which would be payable upon the applicable redemption described under "Optional Redemption at a Premium During Long-Term Interest Rate Period" above. Notice of Redemption. At least 30 days before each redemption except "Mandatory Redemption on Each Interest Payment Date During Commercial Paper Mode" described above, the Trustee will mail a notice of redemption by first-class mail to each Bondholder at the holder's registered address. Failure to give any required notice of redemption as to any particular Bonds, or any defect therein, will not affect the validity of the call for redemption of any Bonds in respect of which no failure or defect occurs. Any notice mailed as provided in this paragraph shall be effective when sent and will be conclusively presumed to have been given whether or not actually received by the addressee. Effect of Notice of Redemption. When notice of redemption is required and given, and when Bonds are to be redeemed without notice, Bonds called for redemption become due and payable on the redemption date at the applicable redemption price, subject to the Company's right to purchase Bonds as provided above; in such 63 case when funds are deposited with the Trustee sufficient for redemption or for purchase, interest on the Bonds to be redeemed or purchased ceases to accrue as of the date of redemption or purchase. 9. Denominations; Transfer; Exchange. The Bonds may be issued in registered form without coupons in denominations as follows: (1) when interest is payable at a Daily, Weekly or Commercial Paper Rate, $100,000 or any integral multiple thereof; and (2) when interest is payable at a Long-Term Interest Rate, $5,000 and integral multiples of $5,000 thereafter. A holder may register the transfer of or exchange Bonds in accordance with the Indenture. The Trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. Except in connection with the purchase of Bonds tendered for purchase or purchased in lieu of redemption, the Trustee will not be required to register the transfer of or exchange any Bond which has been called for redemption or during the period beginning 15 days before the mailing of notice calling the Bonds or any portion of the Bonds for redemption and ending on the redemption date. 10. Persons Deemed Owners. The registered holder of this Bond shall be treated as the owner of it for all purposes. 11. Funds in Trust; Unclaimed Funds. All moneys which the Trustee shall have withdrawn from the account of the Company or shall have received from any other source and set aside, or deposited with the paying agents, for the purpose of paying any of the Bonds hereby secured, either at the maturity thereof or upon call for redemption, shall be held in trust for the respective holders of such Bonds. But any moneys which shall be so set aside or deposited by the Trustee and which shall remain unclaimed by the holders of such Bonds for a period of six (6) years after the date on which such Bonds shall have become due and payable shall upon request in writing be paid to the Company or to such officer, board or body as may then be entitled by law to receive the same, and thereafter the holders of such Bonds shall look only to the Company or to such officer, board or body, as the case may be, for payment and then only to the extent of the amount so received without any interest thereon, and the Trustee, the Issuer and the paying agents shall have no responsibility with respect to such moneys. 12. Discharge Before Redemption or Maturity. If the Company at any time deposits with the Trustee money or Government Obligations as described in the Indenture sufficient to pay at redemption or maturity principal of and interest on the outstanding Bonds, and if the Company also pays all other sums then payable by the Company under the Indenture, the lien of the Indenture will be discharged. After discharge, Bondholders must 64 look only to the deposited money and securities for payment. Government Obligations are securities backed by the faith and credit of the United States or securities evidencing ownership interest in such full-faith and credit securities. 13. Amendment, Supplement, Waiver. Subject to certain exceptions, the Indenture, the Agreement or the Bonds may be amended or supplemented, and any past default or compliance with any provision may be waived, with the consent of the holders of a majority in principal amount of the Bonds then outstanding. Any such consent shall be irrevocable and shall bind any subsequent owner of this Bond or any Bond delivered in substitution for this Bond. Without the consent of any Bondholder, the Issuer may amend or supplement the Indenture, the Agreement or the Bonds as described in the Indenture, among other things, to cure any ambiguity, omission, defect or inconsistency, to provide for uncertificated Bonds in addition to or in place of certificated Bonds, to provide for a Book-Entry System for the Bonds or to make any change that does not materially adversely affect the rights of any Bondholder. 14. Defaults and Remedies. The Indenture provides that the occurrences of certain events constitute Events of Default. If an Event of Default occurs and is continuing, the Bonds may become or may be declared immediately due and payable, as provided in the Indenture. An Event of Default and its consequences may be waived as provided in the Indenture. Bondholders may not enforce the Indenture or the Bonds except as provided in the Indenture. Except as specifically provided in the Indenture, the Trustee may refuse to enforce the Indenture or the Bonds unless it receives indemnity satisfactory to it. Subject to certain limitations, holders of a majority in principal amount of the Bonds then outstanding may direct the Trustee in its exercise of any trust or power. 15. No Recourse Against Others. A member, director, officer or employee, as such, of the Issuer shall not have any liability for any obligations of the Issuer or the Company under the Bonds or the Indenture or for any claim based on such obligations or their creation. Each Bondholder by accepting a Bond waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Bond. 16. Authentication. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Indenture until the certificate of authentication hereon shall have been duly executed by the Trustee. 17. Abbreviations. Customary abbreviations may be used in the name of a Bondholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN 65 (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). A copy of the Indenture may be inspected at the corporate trust office of the Trustee located at 214 Hogan Street, 2nd Floor, Jacksonville, Florida 32202. 66 IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law. IN WITNESS WHEREOF the Development Authority of Monroe County has caused this Bond to be executed in its name by its Chairman or Vice Chairman by his manual or facsimile signature and attested by the manual or facsimile signature of its Secretary or Assistant Secretary and its corporate seal to be hereunto affixed or printed hereon. DEVELOPMENT AUTHORITY OF MONROE COUNTY By: ____________ Chairman Attest: ____________________ Secretary 67 CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds of the series designated therein and issued under the provisions of the within-mentioned Indenture FIRST UNION NATIONAL BANK OF FLORIDA, as Trustee Date:_____________________ By: ______________________ Authorized Signature STATE OF GEORGIA COUNTY OF MONROE The undersigned, Clerk of the Superior Court of Monroe County, Georgia, hereby certifies that the within Second Series 1994 Bond was validated and confirmed by judgment of the Superior Court of Monroe County, Georgia rendered on the 19th day of September, 1994, that no intervention or objection was filed thereto and that no appeal has been taken therefrom. IN WITNESS WHEREOF, I have caused this Certificate to be executed by the use of my facsimile signature and have caused the official seal of the Court or a facsimile thereof to be affixed hereto. ___________________________________ Clerk, Superior Court, Monroe County, Georgia 68 The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM- as tenants UNIF GIFT MIN ACT- _______ Custodian ________ common (Cust) (Minor) TEN ENT- as tenants by the entireties under Uniform Gifts to JT TEN- as joint tenants Minors Act with right of survivorship and ________________________ not as tenants (State) in common Additional abbreviations may also be used though not in list above. ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto ____________________________________________________________ PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________________________ (Name and Address of Assignee) _________________________________________________________________ the within Bond and does hereby irrevocably constitute and appoint ______________________ attorney to transfer the said Bond on the books kept for registration thereof with full power of substitution in the premises. Dated:_____________________________ Signature guaranteed: ______________________________ ______________________________ NOTICE: The signature to this Medallion Number:_____________ assignment must correspond *Signature(s) must be with the name of the guaranteed by an eligible registered owner as it appears guarantor institution which is upon the face of the within a member of a recognized Bond in every particular, signature guarantee program, without alteration or i.e. Securities Transfer enlargement or any change Agents Medallion Program whatever. (STAMP), or New York Stock Exchange Medallion Signature Program (MSP). 69 EX-99.E 6 EXHIBIT E 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 6.30% Pollution Control Series due September 1, 2024 Dated as of August 15, 1994 This instrument was prepared by G. Edison Holland, Jr., Seventh Floor, Blount Building, 3 West Garden Street, Pensacola, Florida 32501, and Thomas J. Hartland, Jr., 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216. SUPPLEMENTAL INDENTURE, dated as of August 15, 1994, 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 the 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 offices of the Trustee, above referred to; and WHEREAS the Company and the Trustees 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 offices of the Trustee, above referred to; and -1- 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 "6.30% Pollution Control Series due September 1, 2024" (hereinafter sometimes referred to as the "Forty-second Series"), each of which bonds shall bear the descriptive title of "First Mortgage Bond", the bonds of such series to bear interest at the annual rate designated in the title thereof and to mature September 1, 2024; and WHEREAS each of the bonds of the Forty-second Series is to be substantially in the following form, with appropriate insertions and deletions, to-wit: [FORM OF BOND OF THE FORTY-SECOND SERIES] GULF POWER COMPANY First Mortgage Bond, 6.30% Pollution Control Series Due September 1, 2024 No.......... $.............. Gulf Power Company, a Maine corporation (hereinafter called the "Company"), for value received, hereby promises to pay to First Union National Bank of Florida, Jacksonville, Florida (as trustee under the Trust Indenture dated as of August 15, 1994 of the Development Authority of Monroe County, relating to the Revenue Bonds (hereinafter mentioned)) or registered assigns, the principal sum of Dollars on September 1, 2024, 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 March 1, 1995, in which case from August 15, 1994, at the rate per annum, until the principal hereof shall have become due and payable, specified in the title of this -2- bond, payable on March 1 and September 1 in each year commencing March 1, 1995. The obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on bonds of this series shall be fully or partially, as the case may be, satisfied and discharged to the extent that, at any time that any such payment shall be due, the Company shall have made payments as required by the Company's Note dated September 29, 1994 issued pursuant to Section 3.2 of the Loan Agreement dated as of August 15, 1994 (hereinafter referred to as the "Agreement") between the Development Authority of Monroe County and the Company, sufficient to pay fully or partially the then due principal of and premium, if any, and interest on the Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) First Series 1994 (hereinafter referred to as the "Revenue Bonds") or there shall be in the Bond Fund established pursuant to Section 5.02 of the Trust Indenture dated as of August 15, 1994 (hereinafter referred to as the "Revenue Bond Indenture") of the Development Authority of Monroe County to First Union National Bank of Florida, Jacksonville, Florida, trustee (hereinafter, together with any successor trustee under the Revenue Bond Indenture, referred to as the "Revenue Bond Trustee"), sufficient available funds to pay fully or partially the then due principal of and premium, if any, and interest on the Revenue Bonds. The Trustee (hereinafter mentioned) may conclusively presume that the obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on bonds of this series shall have been fully satisfied and discharged unless and until the Trustee shall have received a written notice from the Revenue Bond Trustee stating (i) that timely payment of the principal of or premium, if any, or interest on the Revenue Bonds has not been made, (ii) that there are not sufficient available funds in such Bond Fund to make such payment and (iii) the amount of funds required to make such payment. 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 some- times referred to as the "Trustee"), and The Citizens & Peoples National Bank of Pensacola, as Trustees, and -3- 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. 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 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, 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. In the manner provided in the Indenture, the bonds of this series are also redeemable in whole, by payment of the principal amount thereof plus accrued interest thereon to the date fixed for redemption, upon receipt by the Trustee of a written demand from the Revenue Bond Trustee stating that the principal amount of all the Revenue Bonds then outstanding under the Revenue Bond Indenture has been declared immediately due and payable pursuant to Section 8.02 of the Revenue Bond Indenture. As provided in the Indenture, the date fixed for such redemption shall be not more than 180 days after receipt by the Trustee of the aforesaid written demand and shall be specified in a notice of redemption to be given not more than 10 nor less than 5 days prior to the date so fixed for such redemption. As in the Indenture provided, such notice of redemption shall be rescinded and become null and void for all purposes under the Indenture upon rescission of the aforesaid written demand under the Revenue Bond Indenture, and thereupon no redemption of the bonds of this series and no payments in respect thereof as specified in such notice of redemption shall be effected or required. -4- In the manner and to the extent provided in the Indenture, the bonds of this series are also redeemable in whole at any time or in part from time to time upon receipt by the Trustee of a written demand from the Revenue Bond Trustee specifying a principal amount of Revenue Bonds which have been called for redemption pursuant to the second or third paragraph of Section 3.01 of the Revenue Bond Indenture. As and to the extent provided in the Indenture, bonds of this series equal in principal amount to the principal amount of such Revenue Bonds to be redeemed will be redeemed on the date fixed for redemption of the Revenue Bonds at the principal amount of such bonds of this series and accrued interest thereon to the date fixed for redemption, together (in the case of a redemption coincident with a redemption of Revenue Bonds pursuant to the third paragraph of Section 3.01 of the Revenue Bond Indenture) with a premium equal to a percentage of the principal amount thereof determined as set forth in the following tabulation: If Redeemed During the Twelve Months' Period Ending the Last Day of August, Regular Redemption Year Premium 2000 2% 2001 1% and without premium if redeemed on or after September 1, 2001. 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 -5- 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 principal office 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 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. 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 corporate seal or facsimile thereof to be affixed hereto or imprinted hereon and attested by its -6- 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 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 in 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 -7- 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 $22,000,000 principal amount of bonds of the Forty-second Series currently proposed to be 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 all improvements and additions to property of the Company subject to the lien of the Indenture made, constructed or otherwise acquired by it and not heretofore described in the Indenture or any supplement thereto and not heretofore released from the lien of the Indenture, 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 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 said 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 -8- 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 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: -9- 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-second Series"), and the form thereof shall be substantially as hereinbefore set forth. Bonds of the Forty-second Series shall mature on the date specified in the form thereof hereinbefore set forth, and the definitive bonds of such series shall be issued only as registered bonds without coupons. Bonds of the Forty-second 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-second 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-second 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 March 1 and September 1 in each year commencing March 1, 1995. The principal of and premium, if any, and the interest on the bonds of the Forty-second 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-second Series may be transferred at the principal office of the Trustee, in the Borough of Manhattan, The City of New York. Bonds of the Forty-second 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 principal office 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 the Forty-second Series other than for any tax or taxes or other governmental charge required to be paid by the Company. Any or all of the bonds of the Forty-second Series shall be redeemable 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 -10- 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, at the principal amount thereof and accrued interest thereon to the date fixed for redemption if redeemed by the operation of Section 4 of the Supplemental Indenture dated as of October 1, 1964 or of the improvement fund provisions of any Supplemental Indenture other than this Supplemental Indenture or by the use of proceeds of released property. SECTION 2. The obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on the bonds of the Forty-second Series shall be fully or partially, as the case may be, satisfied and discharged, to the extent that, at the time that any such payment shall be due, the Company shall have made payments as required by the Company's Note dated September 29, 1994 issued pursuant to Section 3.2 of the Loan Agreement dated as of August 15, 1994 (hereinafter referred to as the "Agreement") between the Development Authority of Monroe County and the Company sufficient to pay fully or partially the then due principal of and premium, if any, and interest on the Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) First Series 1994 (hereinafter referred to as the "Revenue Bonds") or there shall be in the Bond Fund established pursuant to Section 5.02 of the Trust Indenture dated as of August 15, 1994 (hereinafter referred to as the "Revenue Bond Indenture") of the Development Authority of Monroe County to First Union National Bank of Florida, Jacksonville, Florida, trustee (hereinafter, together with any successor trustee under the Revenue Bond Indenture, referred to as the "Revenue Bond Trustee"), sufficient available funds to pay fully or partially the then due principal of and premium, if any, and interest on the Revenue Bonds. The Trustee may conclusively presume that the obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on bonds of the Forty-second Series shall have been fully satisfied and discharged unless and until the Trustee shall have received a written notice from the Revenue Bond Trustee stating (i) that timely payment of the principal of or premium, if any, or interest on the Revenue Bonds has not been made, (ii) that there are not sufficient available funds in such Bond Fund to make such payment and (iii) the amount of funds required to make such payment. -11- In addition to redemption as provided in Section 1 hereof, Bonds of the Forty-second Series shall also be redeemable in whole upon receipt by the Trustee of a written demand for the redemption of the bonds of the Forty-second Series (hereinafter called "Redemption Demand") from the Revenue Bond Trustee, stating that the principal amount of all the Revenue Bonds then outstanding under the Revenue Bond Indenture has been declared immediately due and payable pursuant to the provisions of Section 8.02 of the Revenue Bond Indenture, specifying the date from which unpaid interest on the Revenue Bonds has then accrued and stating that such acceleration of maturity has not been rescinded. The Trustee shall within 10 days of receiving the Redemption Demand mail a copy thereof to the Company stamped or otherwise marked to indicate the date of receipt by the Trustee. The Company shall fix a redemption date for the redemption so demanded (herein called the "Demand Redemption") and shall mail to the Trustee notice of such date at least 30 days prior thereto. The date fixed for Demand Redemption may be any day not more than 180 days after receipt by the Trustee of the Redemption Demand. If the Trustee does not receive such notice from the Company within 150 days after receipt by the Trustee of the Redemption Demand, the date for Demand Redemption shall be deemed fixed at the 180th day after such receipt. The Trustee shall mail notice of the date fixed for Demand Redemption (hereinafter called the "Demand Redemption Notice") to the Revenue Bond Trustee (and the registered holders of the bonds of the Forty-second Series, if other than said Revenue Bond Trustee) not more than 10 nor less than 5 days prior to the date fixed for Demand Redemption, provided, however, that the Trustee shall mail no Demand Redemption Notice (and no Demand Redemption shall be made) if prior to the mailing of the Demand Redemption Notice the Trustee shall have received written notice of rescission of the Redemption Demand from the Revenue Bond Trustee. Demand Redemption of the bonds of the Forty-second Series shall be at the principal amount thereof and accrued interest thereon to the date fixed for redemption, and such amount shall become and be due and payable, subject to the first paragraph of this Section 2, on the date fixed for Demand Redemption as above provided. Anything in this paragraph contained to the contrary notwithstanding, if, after mailing of the Demand Redemption Notice and prior to the date fixed for Demand Redemption, the Trustee shall have received a written notice from the Revenue Bond Trustee that the Redemption Demand has been rescinded or that the acceleration of maturity of the Revenue Bonds has been rescinded, the Demand Redemption -12- Notice shall thereupon, without further act of the Trustee or the Company, be rescinded and become null and void for all purposes hereunder and no redemption of the bonds of the Forty-second Series and no payments in respect thereof as specified in the Demand Redemption Notice shall be effected or required. Bonds of the Forty-second Series shall also be redeemable in whole at any time, or in part from time to time (hereinafter called the "Regular Redemption"), upon receipt by the Trustee of a written demand (hereinafter referred to as the "Regular Redemption Demand") from the Revenue Bond Trustee stating: (1) the principal amount of Revenue Bonds to be redeemed pursuant to the third paragraph of Section 3.01 of the Revenue Bond Indenture; (2) the date of such redemption and that notice thereof has been given as required by the Revenue Bond Indenture; (3) that the Trustee shall call for redemption on the stated date fixed for redemption of the Revenue Bonds a principal amount of bonds of the Forty-second Series equal to the principal amount of Revenue Bonds to be redeemed; and (4) that the Revenue Bond Trustee, as holder of all bonds of the Forty-second Series then outstanding, waives notice of such redemption. The Trustee may conclusively presume the statements contained in the Regular Redemption Demand to be correct. Regular Redemption of the bonds of the Forty-second Series shall be at the principal amount thereof and accrued interest thereon to the date fixed for redemption, together with a premium equal to a percentage of the principal amount thereof determined as set forth in the tabulation appearing in the form of the bond hereinbefore set forth, and such amount shall become and be due and payable, subject to the first paragraph of this Section 2, on the date fixed for such Regular Redemption, which shall be the date specified pursuant to item (2) of the Regular Redemption Demand as above provided. Bonds of the Forty-second Series shall also be redeemable in whole at any time (hereinafter called the "Special Redemption") upon receipt by the Trustee of a written demand (hereinafter referred to as the "Special Redemption Demand") from the Revenue Bond Trustee stating: (1) that the outstanding Revenue Bonds have been called for redemption in whole pursuant to the second paragraph of Section 3.01 and Section 3.06 of the Revenue Bond Indenture; (2) the date of such redemption and that notice thereof has been given as required by the Revenue Bond Indenture; (3) that the Trustee shall call for redemption on the stated date fixed for redemption of the Revenue -13- Bonds a principal amount of bonds of the Forty-second Series equal to the principal amount of the Revenue Bonds to be redeemed; and (4) that the Revenue Bond Trustee, as holder of all bonds of the Forty-second Series then outstanding, waives notice of such redemption. The Trustee may conclusively presume the statements contained in the Special Redemption Demand to be correct. Special Redemption of the bonds of the Forty-second Series shall be at the principal amount thereof and accrued interest thereon to the date fixed for redemption but without premium, and such amount shall become and be due and payable, subject to the first paragraph of this Section 2, on the date fixed for such Special Redemption, which shall be the date specified pursuant to item (2) of the Special Redemption Demand as above provided. SECTION 3. If any interest payment date for bonds of the Forty-second Series 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, then such interest payment date shall be the next succeeding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. SECTION 4. Any written notice to the Trustee from the Revenue Bond Trustee shall be signed by the Revenue Bond Trustee's duly authorized officer therefor. SECTION 5. The Company covenants that the provisions of Section 4 of the Supplemental Indenture dated as of October 1, 1964, shall remain in full force and effect so long as any bonds of the Forty-second Series shall be outstanding under the Indenture. SECTION 6. 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 7. 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. -14- SECTION 8. 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 9. 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. -15- 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, in several counterparts, all as of the day and year first above written. GULF POWER COMPANY By: /s/A. E. Scarbrough A. E. Scarbrough Vice President 500 Bayfront Parkway Pensacola, Florida 32501 Attest: /s/W. E. Tate Warren E. Tate, Secretary 500 Bayfront Parkway Pensacola, Florida 32501 Signed, sealed and delivered this 22nd day of September, 1994 by GULF POWER COMPANY in the presence of: /s/Valerie Blackmon /s/Gina Naar THE CHASE MANHATTAN BANK (National Association), as Trustee By: /s/Valerie Dunbar Valerie Dunbar Second Vice President 4 Chase MetroTech Center 3rd Floor Brooklyn, New York 11245 Attest: /s/Mary Lewicki Corporate Trust Officer 4 Chase MetroTech Center 3rd Floor Brooklyn, New York 11245 Signed, sealed and delivered this 27th day of September, 1994 by THE CHASE MANHATTAN BANK (National Association) in the presence of: /s/Ronald J. Halleran Name: Ronald J. Halleran /s/Thomas M. Barry Name: Thomas M. Barry STATE OF FLORIDA ) ) COUNTY OF ESCAMBIA ) The foregoing instrument was acknowledged before me this 22nd day of September, 1994, by A. E. Scarbrough, 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. /s/Candace Klinglesmith Notary Public - State of Florida My Commission Expires: May 18, 1995 Commission Number: CC 097846 STATE OF NEW YORK ) ) COUNTY OF KINGS ) The foregoing instrument was acknowledged before me this 27th day of September, 1994, by Valerie Dunbar, a Second 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. /s/Della K. Benjamin Name: Della K. Benjamin Notary Public My Commission Expires: April 30, 1995 Commission Number: 24-4659667 EX-99.F 7 EXHIBIT F 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 Second Pollution Control Series due September 1, 2024 Dated as of September 1, 1994 This instrument was prepared by G. Edison Holland, Jr., Seventh Floor, Blount Building, 3 West Garden Street, Pensacola, Florida 32501, and Thomas J. Hartland, Jr., 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216. SUPPLEMENTAL INDENTURE, dated as of September 1, 1994, 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 the 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 offices of the Trustee, above referred to; and WHEREAS the Company and the Trustees 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 offices of the Trustee, above referred to; and -1- 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 "Second Pollution Control Series due September 1, 2024" (hereinafter sometimes referred to as the "Forty-third Series"), each of which bonds shall bear the descriptive title of "First Mortgage Bond", the bonds of such series to bear interest as herein provided and to mature September 1, 2024; and WHEREAS each of the bonds of the Forty-third Series is to be substantially in the following form, with appropriate insertions and deletions, to-wit: [FORM OF BOND OF THE FORTY-THIRD SERIES] GULF POWER COMPANY First Mortgage Bond, Second Pollution Control Series Due September 1, 2024 No.......... $.............. Gulf Power Company, a Maine corporation (hereinafter called the "Company"), for value received, hereby promises to pay to First Union National Bank of Florida, Jacksonville, Florida (as trustee under the Trust Indenture dated as of September 1, 1994 of the Development Authority of Monroe County, relating to the Revenue Bonds (hereinafter mentioned)) or registered assigns, the principal sum of Dollars on September 1, 2024, and to pay to the registered holder hereof interest on said sum from the latest 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 the first interest payment date, in which case from September 28, 1994, at the rates per annum, until the principal hereof shall have become due and payable, payable -2- on the same dates, as the Revenue Bonds pursuant to the Revenue Indenture (hereinafter mentioned). The obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on bonds of this series shall be fully or partially, as the case may be, satisfied and discharged to the extent that, at any time that any such payment shall be due, the Company shall have made payments as required by the Company's Note dated September 28, 1994 issued pursuant to Section 3.2 of the Loan Agreement dated as of September 1, 1994 (hereinafter referred to as the "Agreement") between the Development Authority of Monroe County and the Company, sufficient to pay fully or partially the then due principal of and premium, if any, and interest on the Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) Second Series 1994 (hereinafter referred to as the "Revenue Bonds") or there shall be on deposit with the Revenue Bond Trustee (hereinafter mentioned) pursuant to the Trust Indenture dated as of September 1, 1994 (hereinafter referred to as the "Revenue Bond Indenture") of the Development Authority of Monroe County to First Union National Bank of Florida, Jacksonville, Florida, trustee (hereinafter, together with any successor trustee under the Revenue Bond Indenture, referred to as the "Revenue Bond Trustee"), sufficient available funds to pay fully or partially the then due principal of and premium, if any, and interest on the Revenue Bonds. The Trustee (hereinafter mentioned) may conclusively presume that the obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on bonds of this series shall have been fully satisfied and discharged unless and until the Trustee shall have received a written notice from the Revenue Bond Trustee stating (i) that timely payment of the principal of or premium, if any, or interest on the Revenue Bonds has not been made, (ii) that there are not sufficient available funds in such Bond Fund to make such payment and (iii) the amount of funds required to make such payment. 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 some- times referred to as the "Trustee"), and The Citizens & -3- 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. 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 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, 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. In the manner provided in the Indenture, the bonds of this series are also redeemable in whole, by payment of the principal amount thereof plus accrued interest thereon to the date fixed for redemption, upon receipt by the Trustee of a written demand from the Revenue Bond Trustee stating that the principal amount of all the Revenue Bonds then outstanding under the Revenue Bond Indenture has been declared immediately due and payable pursuant to Section 8.02 of the Revenue Bond Indenture. As provided in the Indenture, the date fixed for such redemption shall be not more than 180 days after receipt by the Trustee of the aforesaid written demand and shall be specified in a notice of redemption to be given not more than 10 nor less than 5 days prior to the date so fixed for such redemption. As in the Indenture provided, such notice of redemption shall be rescinded and become null and void for all purposes under the Indenture upon rescission of the aforesaid written demand under the Revenue Bond Indenture, and thereupon no redemption of the bonds of this series and no payments in -4- respect thereof as specified in such notice of redemption shall be effected or required. In the manner and to the extent provided in the Indenture, the bonds of this series are also redeemable in whole at any time or in part from time to time upon receipt by the Trustee of a written demand from the Revenue Bond Trustee specifying a principal amount of Revenue Bonds which have been called for redemption pursuant to the optional redemption provisions of the Revenue Bonds and the Revenue Bond Indenture. As and to the extent provided in the Indenture, bonds of this series equal in principal amount to the principal amount of such Revenue Bonds to be redeemed pursuant to such optional redemption provisions will be redeemed on the date fixed for redemption of the Revenue Bonds at the principal amount of such bonds of this series and accrued interest thereon to the date fixed for redemption, together with a premium equal to the redemption premium (if any) payable upon such redemption of Revenue Bonds. 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 principal office of the Trustee, in the Borough of Manhattan, The City of New York, but only in the manner -5- 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 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. 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 corporate seal or 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 -6- [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 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 in 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 $20,000,000 principal amount of bonds of the Forty-third Series currently proposed to be 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 -7- 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 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 said 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 -8- 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 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-third Series"), and the form thereof shall be substantially as hereinbefore set forth. Bonds of the Forty-third Series shall mature on the date specified in the form thereof hereinbefore set forth, and the definitive bonds of such series shall be issued only as registered bonds without coupons. Bonds of the Forty-third 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-third 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. -9- Bonds of the Forty-third Series, until the principal thereof shall have become due and payable, shall bear interest at the same rates, payable on the same dates, as the Revenue Bonds pursuant to the Revenue Bond Indenture (each as hereinafter defined). The principal of and premium, if any, and the interest on the bonds of the Forty-third 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-third Series may be transferred at the principal office of the Trustee, in the Borough of Manhattan, The City of New York. Bonds of the Forty-third 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 principal office 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 the Forty-third Series other than for any tax or taxes or other governmental charge required to be paid by the Company. Any or all of the bonds of the Forty-third Series shall be redeemable 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 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 if redeemed by the operation of Section 4 of the Supplemental Indenture dated as of October 1, 1964 or of the improvement fund provisions of any Supplemental Indenture other than this Supplemental Indenture or by the use of proceeds of released property. SECTION 2. The obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on the bonds of the Forty-third Series shall be fully or partially, as the case may be, satisfied and discharged, to the extent that, at the time that any such payment shall be due, the Company shall have made payments as required by the Company's Note dated September 28, 1994 issued pursuant to Section 3.2 of the -10- Loan Agreement dated as of September 1, 1994 (hereinafter referred to as the "Agreement") between the Development Authority of Monroe County and the Company sufficient to pay fully or partially the then due principal of and premium, if any, and interest on the Development Authority of Monroe County (Georgia) Pollution Control Revenue Bonds (Gulf Power Company Plant Scherer Project) Second Series 1994 (hereinafter referred to as the "Revenue Bonds") or there shall be on deposit with the Revenue Bond Trustee (as hereinafter defined) pursuant to the Trust Indenture dated as of September 1, 1994 (hereinafter referred to as the "Revenue Bond Indenture") of the Development Authority of Monroe County to First Union National Bank of Florida, Jacksonville, Florida, trustee (hereinafter, together with any successor trustee under the Revenue Bond Indenture, referred to as the "Revenue Bond Trustee"), sufficient available funds to pay fully or partially the then due principal of and premium, if any, and interest on the Revenue Bonds. The Trustee may conclusively presume that the obligation of the Company to make payments with respect to the principal of and premium, if any, and interest on bonds of the Forty-third Series shall have been fully satisfied and discharged unless and until the Trustee shall have received a written notice from the Revenue Bond Trustee stating (i) that timely payment of the principal of or premium, if any, or interest on the Revenue Bonds has not been made, (ii) that there are not sufficient available funds in such Bond Fund to make such payment and (iii) the amount of funds required to make such payment. In addition to redemption as provided in Section 1 hereof, Bonds of the Forty-third Series shall also be redeemable in whole upon receipt by the Trustee of a written demand for the redemption of the bonds of the Forty-third Series (hereinafter called "Redemption Demand") from the Revenue Bond Trustee, stating that the principal amount of all the Revenue Bonds then outstanding under the Revenue Bond Indenture has been declared immediately due and payable pursuant to the provisions of Section 8.02 of the Revenue Bond Indenture, specifying the date from which unpaid interest on the Revenue Bonds has then accrued and stating that such acceleration of maturity has not been rescinded. The Trustee shall within 10 days of receiving the Redemption Demand mail a copy thereof to the Company stamped or otherwise marked to indicate the date of receipt by the Trustee. The Company shall fix a redemption date for the redemption so demanded (herein called the "Demand Redemption") and shall mail to the Trustee notice of such date at least 30 days prior thereto. The date fixed for -11- Demand Redemption may be any day not more than 180 days after receipt by the Trustee of the Redemption Demand. If the Trustee does not receive such notice from the Company within 150 days after receipt by the Trustee of the Redemption Demand, the date for Demand Redemption shall be deemed fixed at the 180th day after such receipt. The Trustee shall mail notice of the date fixed for Demand Redemption (hereinafter called the "Demand Redemption Notice") to the Revenue Bond Trustee (and the registered holders of the bonds of the Forty-third Series, if other than said Revenue Bond Trustee) not more than 10 nor less than 5 days prior to the date fixed for Demand Redemption, provided, however, that the Trustee shall mail no Demand Redemption Notice (and no Demand Redemption shall be made) if prior to the mailing of the Demand Redemption Notice the Trustee shall have received written notice of rescission of the Redemption Demand from the Revenue Bond Trustee. Demand Redemption of the bonds of the Forty-third Series shall be at the principal amount thereof and accrued interest thereon to the date fixed for redemption, and such amount shall become and be due and payable, subject to the first paragraph of this Section 2, on the date fixed for Demand Redemption as above provided. Anything in this paragraph contained to the contrary notwithstanding, if, after mailing of the Demand Redemption Notice and prior to the date fixed for Demand Redemption, the Trustee shall have received a written notice from the Revenue Bond Trustee that the Redemption Demand has been rescinded or that the acceleration of maturity of the Revenue Bonds has been rescinded, the Demand Redemption Notice shall thereupon, without further act of the Trustee or the Company, be rescinded and become null and void for all purposes hereunder and no redemption of the bonds of the Forty-third Series and no payments in respect thereof as specified in the Demand Redemption Notice shall be effected or required. Bonds of the Forty-third Series shall also be redeemable in whole at any time, or in part from time to time (hereinafter called the "Regular Redemption"), upon receipt by the Trustee of a written demand (hereinafter referred to as the "Regular Redemption Demand") from the Revenue Bond Trustee stating: (1) the principal amount of Revenue Bonds to be redeemed pursuant to the optional redemption provisions of the Revenue Bonds and the Revenue Bond Indenture; (2) the date of such redemption and that notice thereof has been given as required by the Revenue Bond Indenture; (3) that the Trustee shall call for redemption on the stated date fixed for redemption of the -12- Revenue Bonds a principal amount of bonds of the Forty-third Series equal to the principal amount of Revenue Bonds to be redeemed; and (4) that the Revenue Bond Trustee, as holder of all bonds of the Forty-third Series then outstanding, waives notice of such redemption. The Trustee may conclusively presume the statements contained in the Regular Redemption Demand to be correct. Regular Redemption of the bonds of the Forty-third Series shall be at the principal amount thereof and accrued interest thereon to the date fixed for redemption, together with a premium equal to the redemption premium (if any) payable upon such redemption of Revenue Bonds, and such amount shall become and be due and payable, subject to the first paragraph of this Section 2, on the date fixed for such Regular Redemption, which shall be the date specified pursuant to item (2) of the Regular Redemption Demand as above provided. SECTION 3. If any interest payment date for bonds of the Forty-third Series 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, then such interest payment date shall be the next succeeding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. SECTION 4. Any written notice to the Trustee from the Revenue Bond Trustee shall be signed by the Revenue Bond Trustee's duly authorized officer therefor. SECTION 5. The Company covenants that the provisions of Section 4 of the Supplemental Indenture dated as of October 1, 1964, shall remain in full force and effect so long as any bonds of the Forty-third Series shall be outstanding under the Indenture. SECTION 6. 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 7. 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 -13- provision of the Indenture, as heretofore supplemented and amended, or of this Supplemental Indenture. SECTION 8. 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 9. 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. -14- 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, in several counterparts, all as of the day and year first above written. GULF POWER COMPANY By: /s/A. E. Scarbrough A. E. Scarbrough Vice President 500 Bayfront Parkway Pensacola, Florida 32501 Attest: /s/W. E. Tate Warren E. Tate, Secretary 500 Bayfront Parkway Pensacola, Florida 32501 Signed, sealed and delivered this 22nd day of September, 1994 by GULF POWER COMPANY in the presence of: /s/Valerie Blackmon /s/Gina Naar THE CHASE MANHATTAN BANK (National Association), as Trustee By: /s/Valerie Dunbar Valerie Dunbar Second Vice President 4 Chase MetroTech Center 3rd Floor Brooklyn, New York 11245 Attest: /s/Mary Lewicki Corporate Trust Officer 4 Chase MetroTech Center 3rd Floor Brooklyn, New York 11245 Signed, sealed and delivered this 27th day of September, 1994 by THE CHASE MANHATTAN BANK (National Association) in the presence of: /s/Ronald J. Halleran Name: Ronald J. Halleran /s/Thomas M. Barry Name: Thomas M. Barry STATE OF FLORIDA ) ) COUNTY OF ESCAMBIA ) The foregoing instrument was acknowledged before me this 22nd day of September, 1994, by A. E. Scarbrough, 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. /s/Candace Klinglesmith Notary Public - State of Florida My Commission Expires: May 18, 1995 Commission Number: CC 097846 STATE OF NEW YORK ) ) COUNTY OF KINGS ) The foregoing instrument was acknowledged before me this 27th day of September, 1994, by Valerie Dunbar, a Second 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. /s/Della K. Benjamin Name: Della K. Benjamin Notary Public My Commission Expires: April 30, 1995 Commission Number: 24-4659667 EX-99.G 8 EXHIBIT G BEGGS & LANE P.O. BOX 12950 PENSACOLA, FLORIDA 32576-2950 (904) 432-2451 October 12, 1994 Securities and Exchange Commission Washington, D. C. 20549 Re: Statement on Form U-1 Gulf Power Company (herein called the "Company") File No. 70-8229 Ladies and Gentlemen: We have read the statement on Form U-1, as amended, referred to above and are furnishing this opinion with respect to the transactions described particularly in Amendment No. 5 (Post- Effective No. 3), Amendment No. 6 (Post-Effective No. 4), Amendment No. 7 (Post-Effective No. 5), and Amendment No. 8 (Post-Effective No. 6) to such statement relating to the issuance of Revenue Bonds (as defined therein). We are of the opinion that: (a) the Company is validly organized and duly existing as a corporation under the laws of the State of Maine and is duly authorized to do business as a foreign corporation in the States of Florida, Georgia and Mississippi; (b) the transactions have been consummated in accordance with such statement on Form U-1, as amended; (c) all state laws applicable to such transactions have been complied with; (d) the Collateral Bonds and the Company's Notes evidencing its obligations with respect to the Revenue Bonds are valid and binding obligations of the Company in accordance with their terms; and Securities and Exchange Commission October 12, 1994 Page 2 (e) the consummation of such transactions did not violate the legal rights of the holders of any securities issued by the Company or any associate company thereof. We hereby give our written consent to the use of this opinion in connection with the above-mentioned statement on Form U-1 and to the filing thereof with the Commission at the time of the filing of the certificate pursuant to Rule 24. Very truly yours, /s/Beggs & Lane -----END PRIVACY-ENHANCED MESSAGE-----