Exhibit A-1(b)
GULF POWER COMPANY
TO
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As Trustee.
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SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
____% Series due ___________, 20___
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Dated as of ___________, 20___
SUPPLEMENTAL INDENTURE, dated as of __________, 20____, 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 _______________________________________, a corporation
organized and existing under the laws of __________________________, with its
principal office in _______________________, as trustee (hereinafter commonly
referred to as the "Trustee).
WHEREAS the Company and the Trustees have executed and delivered the
Indenture for the purpose of securing an issue of bonds of the _____ Series
described therein and such additional bonds as may from time to time be issued
under and in accordance with the terms of the Indenture, the aggregate principal
amount of bonds to be secured thereby being not limited, and the Indenture fully
describes and sets forth the property conveyed thereby and is of record in the
Office of the Clerk of the Circuit, Superior or Chancery Court of each county in
the States of _____________, _____________ and ___________________ in which this
Supplemental Indenture is to be recorded and is on file at the principal office
of the Trustee, above referred to; and
WHEREAS the Company and the Trustees, or the Trustee, as the case may
be, have executed and delivered various supplemental indentures for the purpose,
among others, of further securing said bonds and of setting forth the terms and
provisions relating to the bonds of other series described therein, which
supplemental indentures describe and set forth additional property conveyed
thereby and are also of record in the Offices of the Clerks of the Circuit,
Superior or Chancery Courts of some or all of the counties in the States of
_____________, _____________ and ___________________ in which this Supplemental
Indenture is to be recorded and are on file at the principal office of the
Trustee, above referred to; and
WHEREAS 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 "____% Series due
__________, 20____" (hereinafter sometimes referred to as the "________
Series"), each of which bonds shall also bear the descriptive title "First
Mortgage Bond", the bonds of such series to bear interest at the annual rate
designated in the title thereof and to mature __________, 20____; and
WHEREAS each of the bonds of the ________ Series is to be substantially
in the following form, to-wit:
[FORM OF BOND OF THE ________ SERIES]
[FACE]
GULF POWER COMPANY
First Mortgage Bond, ____% Series Due __________, 20____
No. $
Gulf Power Company, a Maine corporation (hereinafter called the "Company"),
for value received, hereby promises to pay to __________ or registered assigns,
the principal sum of _________ Dollars on __________, 20____, 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 __________, 20____, in which case from
__________, 20____ (or, if this bond is dated between the record date for any
interest payment date and such interest payment date, then from such interest
payment date, provided, however, that if the Company shall default in payment of
the interest due on such interest payment date, then from the next preceding
semi-annual interest payment date to which interest has been paid on the bonds
of this series, or if such interest payment date is __________, 20____, from
__________, 20____), at the rate per annum, until the principal hereof shall
have become due and payable, specified in the title of this bond, payable on
_____ and _____ in each year.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This bond shall not be valid or become obligatory for any purpose
unless and until it shall have been authenticated by the execution by the
Trustee or its successor in trust under the Indenture of the certificate
endorsed hereon.
IN WITNESS WHEREOF, Gulf Power Company has caused this bond to be
executed in its name by its President or one of its Vice Presidents by his
signature or a facsimile thereof, and its corporate seal or a facsimile thereof
to be affixed hereto or imprinted hereon and attested by its Secretary or one of
its Assistant Secretaries by his signature or a facsimile thereof.
Dated: ___________, 20___ GULF POWER COMPANY,
By ____________________
President
Attest:
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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.
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as Trustee,
By ____________________
Authorized Officer
[REVERSE]
GULF POWER COMPANY
FIRST MORTGAGE BOND, ____% SERIES DUE __________, 20____
The interest payable on any ___________ or ____________ 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 ___________ or ____________, as the case may
be, next preceding such interest payment date, or, if such ___________ or
____________ shall be a legal holiday or a day on which banking institutions in
the Borough of Manhattan, The City of New York, are authorized to close, the
next preceding day which shall not be a legal holiday or a day on which such
institutions are so authorized to close. The principal of and the premium, if
any, and interest on this bond shall be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, designated for that
purpose, in any coin or currency of the United States of America which at the
time of payment is legal tender for public and private debts.
This bond is one of the bonds issued and to be issued from time to time
under and in accordance with and all secured by an indenture of mortgage or deed
of trust dated as of September 1, 1941, between the Company and The Chase
National Bank of the City of New York and The Citizens & Peoples National Bank
of Pensacola, as Trustees, and indentures supplemental thereto, to which
indenture and indentures supplemental thereto (hereinafter referred to
collectively as the "Indenture") reference is hereby made for a description of
the property mortgaged and pledged, the nature and extent of the security and
the rights, duties and immunities thereunder of _________________ (the
"Trustee") and the rights of the holders of said bonds and of the Trustee and of
the Company in respect of such security, and the limitations on such rights. By
the terms of the Indenture the bonds to be secured thereby are issuable in
series which may vary as to date, amount, date of maturity, rate of interest and
in other respects as in the Indenture provided.
Prior to __________, 20____, the bonds of this series may not be
redeemed by the Company at its option or by operation of the improvement fund or
the replacement provisions of the Indenture or by the use of proceeds of
released property.
On or after __________, 20____, upon notice given by mailing the same,
by first class mail postage prepaid, not less than thirty nor more than
forty-five days prior to the date fixed for redemption to each registered holder
of a bond to be redeemed (in whole or in part) at the last address of such
holder appearing on the registry books, any or all of the bonds of this series
may be redeemed by the Company, at its option, or by operation of various
provisions of the Indenture, at any time and from time to time by the payment of
the principal amount thereof and accrued interest thereon to the date fixed for
redemption, together (a), if redeemed otherwise than by the operation of the
improvement fund or the replacement provisions of the Indenture and otherwise
than by the use of proceeds of released property, as more fully set forth in the
Indenture, with a premium equal to a percentage of the principal amount thereof
determined as set forth in the tabulation below under the heading "Regular
Redemption Premium", and (b), if redeemed by the operation of the improvement
fund or the replacement provisions of the Indenture or by the use of proceeds of
released property, as more fully set forth in the Indenture, without premium:
If redeemed during the twelve months' period ending the last day of December,
Year Regular Redemption
Premium
20___ ___%
20___ ___%
20___ ___%
20___ ___%
20___ ___%
20___ ___%
20___ ___%
20___ ___%
20___ ___%
20___ ___%
and without premium if redeemed on or after __________, 20____.
In case of certain defaults as specified in the Indenture, the
principal of this bond may be declared or may become due and payable on the
conditions, at the time, in the manner and with the effect provided in the
Indenture.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this bond, or for any claim based hereon, or
otherwise in respect hereof or of the Indenture, to or against any incorporator,
stockholder, director or officer, past, present or future, as such, of the
Company, or of any predecessor or successor company, either directly or through
the Company, or such predecessor or successor company, under any constitution or
statute or rule of law, or by the enforcement of any assessment or penalty, or
otherwise, all such liability of incorporators, stockholders, directors and
officers, as such, being waived and released by the holder and owner hereof by
the acceptance of this bond and being likewise waived and released by the terms
of the Indenture.
Every bond of this series shall be dated as of the date of
authentication. This bond is transferable by the registered owner hereof, in
person or by attorney duly authorized, at the office or agency of the Trustee,
in the Borough of Manhattan, The City of New York, but only in the manner
prescribed in the Indenture, upon the surrender and cancellation of this bond
and the payment of charges for transfer, and upon any such transfer a new bond
or bonds of the same series and maturity date and for the same aggregate
principal amount, in authorized denominations, will be issued to the transferee
in exchange herefor. The Company and the Trustee may deem and treat the person
in whose name this bond is registered as the absolute owner for the purpose of
receiving payment and for all other purposes. Bonds of this series shall be
exchangeable for bonds of other authorized denominations having the same
aggregate principal amount, in the manner and upon the conditions prescribed in
the Indenture. However, notwithstanding the provisions of the Indenture, no
charge shall be made upon any transfer or exchange of bonds of this series other
than for any tax or taxes or other governmental charge required to be paid by
the Company.
AND WHEREAS all acts and things necessary to make the bonds, when
authenticated by the Trustee and issued as in the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute the Indenture,
as heretofore supplemented and amended, and this Supplemental Indenture valid,
binding and legal instruments for the security thereof, have been done and
performed, and the creation, execution and delivery of the Indenture, as
heretofore supplemented and amended, and this Supplemental Indenture and the
creation, execution and issue of bonds subject to the terms hereof and of the
Indenture, have in all respects been duly authorized.
NOW, THEREFORE, in consideration of the premises, and of the acceptance
and purchase by the holders thereof of the bonds issued and to be issued under
the Indenture, and of the sum of One Dollar duly paid by the Trustee to the
Company, and of other good and valuable considerations, the receipt whereof is
hereby acknowledged, and for the purpose of securing the due and punctual
payment of the principal of and premium, if any, and interest on the bonds now
outstanding under the Indenture, or the Indenture as supplemented and amended,
and the $_____________ principal amount of bonds of the ________ Series proposed
to be initially issued and all other bonds which shall be issued under the
Indenture, or the Indenture as supplemented and amended, and for the purpose of
securing the faithful performance and observance of all covenants and conditions
therein and in any indenture supplemental thereto set forth, the Company has
given, granted, bargained, sold, transferred, assigned, hypothecated, pledged,
mortgaged, warranted, aliened and conveyed and by these presents does give,
grant, bargain, sell, transfer, assign, hypothecate, pledge, mortgage, warrant,
alien and convey unto _______________________, 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 the premises, property,
franchises and rights, or any thereof, referred to in the foregoing granting
clauses, with the reversion and reversions, remainder and remainders and
(subject to the provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid premises, property, franchises and rights and every part and parcel
thereof.
TO HAVE AND TO HOLD all said premises, property, franchises and rights
hereby conveyed, assigned, pledged or mortgaged, or intended so to be, unto the
Trustee, its successor or successors in trust, and its or their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the equal and
proportionate benefit and security of the holders of all bonds and interest
coupons now or hereafter issued under the Indenture, as supplemented and
amended, pursuant to the provisions thereof, and for the enforcement of the
payment of said bonds and coupons when payable and the performance of and
compliance with the covenants and conditions of the Indenture, as supplemented
and amended, without any preference, distinction or priority as to lien or
otherwise of any bond or bonds over others by reason of the difference in time
of the actual issue, sale or negotiation thereof or for any other reason
whatsoever, except as otherwise expressly provided in the Indenture, as
supplemented and amended; and so that each and every bond now or hereafter
issued thereunder shall have the same lien, and so that the principal of and
premium, if any, and interest on every such bond shall, subject to the terms of
the Indenture, as supplemented and amended, be equally and proportionately
secured thereby and hereby, as if it had been made, executed, delivered, sold
and negotiated simultaneously with the execution and delivery of the Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and secured
thereunder and hereunder are to be issued, authenticated and delivered, and all
said premises, property, franchises and rights hereby and by the Indenture, as
supplemented and amended, conveyed, assigned, pledged or mortgaged, or intended
so to be (including all the right, title and interest of the Company in and to
any and all premises, property, franchises and rights of 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 ________ Series") and the form thereof shall be substantially as
hereinabove set forth. Bonds of the ________ Series shall mature on the date
specified in the form thereof hereinabove set forth, and the definitive bonds of
such series shall be issued only as registered bonds without coupons. Bonds of
the ________ 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 ________ 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 ________ 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 _____ and _____ in each year.
The principal of and premium, if any, and the interest on the bonds of
the ________ 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 ________ Series may be transferred at the office or agency
of the Trustee, in the Borough of Manhattan, The City of New York. Bonds of the
________ Series shall be exchangeable for other bonds of the same series, in the
manner and upon the conditions prescribed in the Indenture, upon the surrender
of such bonds at said office or agency of the Trustee. however, notwithstanding
the provisions of Section 2.05 of the Indenture, no charge shall be made upon
any transfer or exchange of bonds of said series other than for any tax or taxes
or other governmental charge required to be paid by the Company.
The person in whose name any bond of the ________ Series is registered
at the close of business on any record date (as hereinbelow defined) with
respect to any interest payment date shall be entitled to receive the interest
payable on such interest payment date notwithstanding the cancellation of such
bond upon any transfer or exchange thereof subsequent to the record date and
prior to such interest payment date, except if and to the extent the Company
shall default in the payment of the interest due on such interest payment date,
in which case such defaulted interest shall be paid to the person in whose name
such bond (or any bond or bonds issued, directly or after intermediate
transactions, upon transfer or exchange or in substitution thereof) is
registered on a subsequent record date for such payment established as
hereinafter provided. A subsequent record date may be established by the Company
by notice mailed to the holders of bonds not less than ten days preceding such
record date, which record date shall be not less than five nor more than thirty
days prior to the subsequent interest payment date. The term "record date" as
used in this Section with respect to any regular interest payment date shall
mean the ___________ or ____________, as the case may be, next preceding such
interest payment date, or, if such ___________ or ____________ shall be a legal
holiday or a day on which banking institutions in the Borough of Manhattan, The
City of New York, are authorized by law to close, the next preceding day which
shall not be a legal holiday or a day on which such institutions are so
authorized to close.
Bonds of the ________ Series shall be dated as of the date of
authentication and shall bear interest from the latest semi-annual interest
payment date to which interest has been paid on the bonds of such series
preceding the date of authentication, unless such date of authentication be an
interest payment date to which interest is being paid on the bonds of such
series, in which case they shall bear interest from such date of authentication,
provided that bonds authenticated prior to the first interest payment date shall
bear interest from a date six months prior to such date. However, so long as
there is no existing default in the payment of interest on such bonds, the
holder of any bond authenticated by the Trustee between the record date for any
interest payment date and such interest payment date shall not be entitled to
the payment of the interest due on such interest payment date and shall have no
claim against the Company with respect thereto; provided, further, that if and
to the extent the Company shall default in the payment of the interest due on
such interest payment date, then any such bond shall bear interest from the
___________ or ____________, as the case may be, next preceding the date of such
bond, to which interest has been paid or, if the Company shall be in default
with respect to the interest due on __________, 20____, then from __________,
20____.
Prior to __________, 20____, the bonds of the ________ Series shall not
be redeemable at the option of the Company, or by the operation of Section 4 of
the Supplemental Indenture dated as of October 1, 1964 or of Section 2 of this
Supplemental Indenture or of the improvement fund provisions of any supplemental
indenture other than this Supplemental Indenture or by the use of proceeds of
released property.
On or after __________, 20____, any or all of the bonds of the ________
Series shall be redeemable at the option of the Company, or by operation of
various provisions of the Indenture, as supplemented and amended, at any time
and from time to time, prior to maturity, upon notice given by mailing the same,
by first class mail postage prepaid, not less than thirty nor more than
forty-five days prior to the date fixed for redemption to each registered holder
of a bond of the ________ Series to be redeemed (in whole or in part) at the
last address of such holder appearing on the registry books, at the principal
amount thereof and accrued interest thereon to the date fixed for redemption,
together (a), if redeemed otherwise than by the operation of Section 4 of the
Supplemental Indenture dated as of October 1, 1964 or of Section 2 of this
Supplemental Indenture or of the improvement fund provisions of any supplemental
indenture other than this Supplemental Indenture and otherwise than by the use
of proceeds of released property, with a regular redemption premium equal to a
percentage of the principal amount thereof determined as set forth in the
tabulation appearing in the form of the bonds of the ________ Series
hereinbefore set forth, and (b), if redeemed by the operation of Section 4 of
the Supplemental Indenture dated as of October 1, 1964 or of Section 2 of this
Supplemental Indenture or of the improvement fund provisions of any supplemental
indenture other than this Supplemental Indenture or by the use of proceeds of
released property, either (i) with a special redemption premium, if any, equal
to a percentage of the principal amount thereof determined as set forth in the
tabulation appearing in the form of the bonds of the ________ Series
hereinbefore set forth or (ii), if no special redemption premium is so set
forth, then without premium.
SECTION 2. The Company covenants that, so long as any bonds of the
________ Series shall be outstanding under the Indenture, it will, on or before
________________ in each year commencing with __________, 20____:
(a) deposit with the Trustee subject to the provisions of this
Section cash and/or bonds of any series authenticated under the
Indenture then outstanding (taken at their principal amount) in an
amount equal to the "improvement fund requirement" (which term, as used
in this Section, shall mean for any year an amount equal to one per
centum (1%) of the aggregate principal amount of bonds of the ________
Series authenticated and delivered by the Trustee pursuant to the
provisions of Articles IV, V and VI of the Indenture, prior to January
1 of that year, after deducting from such aggregate principal amount
the principal amount of bonds of the ________ Series which, prior to
January 1 of that year, have been deposited with the Trustee for
cancellation as the basis for the release of property or for the
withdrawal of cash representing proceeds of released property or have
been purchased or redeemed by the use of proceeds of released
property); or
(b) to the extent that it does not so deposit cash and/or
bonds, certify to the Trustee unfunded net property additions in an
amount equal to one hundred sixty-six and two-thirds per centum (166
2/3%) of the portion of the improvement fund requirement not so
satisfied.
The term "improvement fund certificate", as used in this Section, shall
mean an accountant's certificate filed by the Company with the Trustee pursuant
to this Section. Such certificate may be a separate certificate or it may be
combined with an improvement fund certificate or certificates filed pursuant to
the improvement fund provisions of the Indenture or of any other indenture or
indentures supplemental thereto.
On or before the first day of June in each year, beginning __________,
20____, so long as any bonds of the ________ Series are outstanding under the
Indenture, the Company shall deliver to the Trustee an improvement fund
certificate showing the improvement fund requirement for that year, the amount
of cash, if any, and the principal amount of bonds authenticated under the
Indenture then outstanding, if any, then to be deposited by the Company with the
Trustee and, if the Company elects to satisfy the improvement fund requirement
for that year in whole or in part by the certification of unfunded net property
additions, the amount, if any, of unfunded net property additions to be
certified. The Company shall, concurrently with the delivery to the Trustee of
such certificate, deposit with the Trustee the amount of cash, if any, and the
principal amount of bonds, if any, shown in such certificate.
No property additions shall be certified in any improvement fund
certificate pursuant to the provisions of this Section unless there shall be
delivered to the Trustee with such certificate the applicable certificates,
opinion of counsel, instruments and cash, if any, required by paragraphs (3),
(4), (5), (7), (9) and (10) of Section 4.05 of the Indenture showing that the
Company has unfunded net property additions equal to the amount so certified.
The Trustee shall hold any cash deposited with it under the provisions
of this Section as a part of the mortgaged and pledged property until paid out
as hereinafter provided. Any cash deposited with the Trustee under the
provisions of this Section may, upon receipt by the Trustee of the written order
of the Company signed by its President or a Vice President, of a treasurer's
certificate such as is described in paragraph (2) of Section 4.05 of the
Indenture and of an opinion of counsel,
(1) be withdrawn, used or applied by the Company in accordance
with the provisions of paragraph (2), (3) or (4) of Section 10.05 of
the Indenture, except that any premium required to be paid to purchase
or redeem bonds shall be paid out of funds held by the Trustee under
this Section and the Company shall not be required to furnish the
Trustee with additional funds for such purpose or to reimburse the
Trustee or the improvement fund for moneys so paid out. Interest and
expenses in connection with purchases or redemptions pursuant to this
Section shall be dealt with as provided in Section 9.05 of the
Indenture; or
(2) be withdrawn by the Company to the extent of sixty per
centum (60%) of the amount of unfunded net property additions certified
to the Trustee for such purpose, but only upon receipt by the Trustee
of the applicable certificates, opinion of counsel, instruments and
cash, if any, required by paragraphs (3), (4), (5), (7), (9) and (10)
of Section 4.05 of the Indenture, showing that the Company has unfunded
net property additions equal to the amount so certified.
Bonds deposited with the Trustee pursuant to this Section, or purchased
or redeemed by the use of cash deposited pursuant to this Section, shall be
cancelled and shall not be thereafter made the basis for the authentication of
bonds, the withdrawal, use or application of cash, or the release of property,
under any of the provisions of the Indenture, or thereafter used to satisfy the
requirements of this Section or of any other improvement fund provided for in
the Indenture or in any indenture supplemental thereto or to satisfy any
replacement deficit pursuant to Section 4 of the Supplemental Indenture dated as
of October 1, 1964.
To the extent that unfunded net property additions are certified to the
Trustee to satisfy the improvement fund requirement for any year in whole or in
part or as a basis for the withdrawal of cash deposited with the Trustee under
the provisions of this Section, the amount of such unfunded net property
additions shall thereafter be deducted in computing the amount of unfunded net
property additions under Section 1.11 of the Indenture and in computing gross
property additions under Section 7.07 of the Indenture.
SECTION 3. The Company covenants that the provisions of Section 4 of
the Supplemental Indenture dated as of October 1, 1964, which are to remain in
effect so long as any bonds of the Tenth Series shall be outstanding under the
Indenture, shall remain in full force and effect so long as any bonds of the
________ Series shall be outstanding under the Indenture.
The Company covenants that it will not, in any calendar year subsequent
to _____, redeem any bonds of the ________ Series through the operation of
Section 4 of the Supplemental Indenture dated as of October 1, 1964 or this
Section in a principal amount that would exceed one per centum (1%) of the
aggregate principal amount of bonds of the ________ Series initially
authenticated and delivered under this Supplemental Indenture.
SECTION 4. The Company covenants that, so long as any bonds of the
________ Series shall be outstanding under the Indenture, it will not declare or
pay any dividends, or make any other distributions (except (a) dividends payable
or distributions made in shares of common stock of the Company and (b) dividends
payable in cash in cases where, concurrently with the payment of the dividend,
an amount in cash equal to the dividend is received by the Company as a capital
contribution or as the proceeds of the issue and sale of shares of its common
stock), on or in respect of its common stock, or purchase or otherwise acquire
for a consideration any shares of its common stock, if the aggregate of such
dividends, distributions and consideration for purchase or other acquisition of
shares of its common stock after __________, 20____, shall exceed
(i) the earned surplus of the Company accumulated after
__________, 20____ (determined in accordance with generally accepted
accounting principles and without giving effect to charges to earned
surplus on account of such dividends, distributions or acquisitions or
on account of the disposition of any amounts which may then be
classified by the Company on its books as amounts in excess of the
original cost of utility plant or to charges or credits to earned
surplus on account of items inherent in the balance sheet at
__________, 20____), plus
(ii) the earned surplus of the Company accumulated prior to
__________, 20____ in an amount not exceeding $_____, plus
(iii) such additional amount as shall be authorized or
approved, upon application by the Company, by the Securities and
Exchange Commission, or by any successor commission thereto, under the
Public Utility Holding Company Act of 1935, as amended.
For the purposes of this Section, in determining the earned surplus of
the Company accumulated after __________, 20____, there shall be deducted the
dividends accruing subsequent to __________, 20____ on preferred stock of the
Company and the total amount, if any, by which the charges to income or earned
surplus since __________, 20____ as provision for depreciation of the mortgaged
and pledged property (other than specially classified property) shall have been
less than the sum of the amounts equal to the product of the applicable
percentage (as defined in Section 4 of the Supplemental Indenture dated as of
October 1, 1964) and the mathematical average of the amounts of depreciable
property (as defined in said Section 4) at the opening of business on the first
day and at the close of business on the last day of each calendar year (and,
proportionately, of each period of months which is less than a calendar year)
subsequent to __________, 20____ included in the period for which earned surplus
is being determined. The term "consideration", as used in this Section, shall
mean the cash or fair value if the consideration be other than cash, and the
term "provision for depreciation", as used in this Section, shall not be deemed
to include provision for the amortization of any amounts classified by the
Company on its books as amounts in excess of the original cost of utility plant.
SECTION 5. As supplemented by this Supplemental Indenture, the
Indenture, as heretofore supplemented and amended, is in all respects ratified
and confirmed and the Indenture, as heretofore supplemented and amended, and
this Supplemental Indenture shall be read, taken and construed as one and the
same instrument.
SECTION 6. Nothing in this Supplemental Indenture contained shall, or
shall be construed to, confer upon any person other than a holder of bonds
issued under the Indenture, the Company and the Trustee any right or interest to
avail himself of any benefit under any provision of the Indenture, as heretofore
supplemented and amended, or of this Supplemental Indenture.
SECTION 7. The Trustee assumes no responsibility for or in respect of
the validity or sufficiency of this Supplemental Indenture or the due execution
hereof by the Company or for or in respect of the recitals and statements
contained herein, all of which recitals and statements are made solely by the
Company.
SECTION 8. This Supplemental Indenture may be executed in several
counterparts and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
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
_______________________________________, as Trustee, has caused this
Supplemental Indenture to be executed in its corporate name by one of its Vice
Presidents and its corporate seal to be hereunto affixed and to be attested by
one of its Assistant Secretaries or one of its Trust Officers, in several
counterparts, all as of the day and year first above written.
GULF POWER COMPANY
[SEAL]
By:___________________________
Name: Title: Address:
Attest:
--------------------------
Name:
Title:
Address:
Signed, sealed and delivered this _____ day of _________, 20___ by GULF POWER
COMPANY, in the County of ___________, State of ____________, in the presence
of:
--------------------------
Name:
--------------------------
Name:
------------------------------------,
as Trustee
By:___________________________
Name:
Title:
Address:
Attest:
--------------------------
Name:
Title:
Address:
Signed, sealed and delivered this _____ day of _________, 20___ by
________________________, in the presence of:
--------------------------
Name:
--------------------------
Name:
STATE OF ______________)
)
COUNTY OF ____________)
The foregoing instrument was acknowledged before me this ____ day of
__________, 20___, by __________________, __________________ of GULF POWER
COMPANY, a Maine corporation, on behalf of the corporation. He is personally
known to me and did take an oath.
--------------------------
Name: _____________________
Notary Public - State of _______________
County of _____________________
[NOTARIAL SEAL] My Commission Expires: ____________
Commission No.: ____________________
STATE OF ______________)
)
COUNTY OF ____________)
The foregoing instrument was acknowledged before me this ____ day of
__________, 20___, by __________________, __________________ of
___________________________________, a _____________ corporation, on behalf of
the corporation. She is personally known to me and did take an oath.
--------------------------
Name: _____________________
Notary Public
State of _______________
[NOTARIAL SEAL] No.: _____________________
Commission Expires: ____________
