Exhibit A
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE TOWN OF COLUMBIA
and
ALABAMA POWER COMPANY
SEVENTH SUPPLEMENTARY
INSTALLMENT SALE AGREEMENT
Dated as of November 1, 1996
Relating to
$21,000,000
Pollution Control Revenue Refunding Bonds, 1996 Series A
(Alabama Power Company Project)
SEVENTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Seventh Supplementary
Installment Sale Agreement)
Page
Parties................................................................ 1
Recitals............................................................... 1
ARTICLE I................... 2
DEFINITIONS.................. 2
ARTICLE II.................. 4
RELATIONSHIP OF AGREEMENT TO THE ORIGINAL AGREEMENT;
ISSUANCE OF THE BONDS..................... 4
Section 2.1. Relationship of Agreement to the Original Agreement...... 4
Section 2.2. Issuance of Bonds........................................ 4
ARTICLE III..................... 5
PROVISIONS FOR PAYMENT................ 5
Section 3.1. Amounts Payable.......................................... 5
Section 3.2. Obligation of the Company Unconditional.................. 5
Section 3.3. Creation of Subordinated Security Interest............... 6
Section 3.4. Assignment and Pledge of Payments and Rights
Under this Agreement.................... 6
Section 3.5. Provision of Credit Agreement............................ 6
ARTICLE IV...................... 7
SPECIAL COVENANTS.................. 7
Section 4.1. No Warranty of Suitability by the Issuer................. 7
Section 4.2. Use of Project........................................... 7
Section 4.3. Indemnity Against Claims................................. 7
Section 4.4. Incorporation of Certain Provisions of the
Original Agreement........................ 7
Section 4.5. Further Assurances and Corrective Instruments............ 8
Section 4.6. Tax Covenants............................................ 8
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ARTICLE V....................... 8
EVENTS OF DEFAULT AND REMEDIES............ 8
Section 5.1. Events of Default........................................ 8
Section 5.2. Remedies on Default...................................... 10
Section 5.3. Agreement to Pay Attorneys' Fees and Expenses............ 10
Section 5.4. No Additional Waiver Implied by One Waiver............... 10
ARTICLE VI...................... 10
MISCELLANEOUS.................... 10
Section 6.1. Term of This Agreement................................... 10
Section 6.2. Notices.................................................. 11
Section 6.3. Binding Effect........................................... 11
Section 6.4. Severability............................................. 11
Section 6.5. Amounts Remaining Under the Indenture.................... 11
Section 6.6. Amendments............................................... 11
Section 6.7. Execution in Counterparts................................ 11
Section 6.8. Applicable Law........................................... 11
Section 6.9. Captions................................................. 11
Section 6.10. Other Financing.......................................... 11
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SEVENTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT dated as of November
1, 1996 between THE INDUSTRIAL DEVELOPMENT BOARD OF THE TOWN OF COLUMBIA, a
public corporation duly created and validly existing pursuant to the
constitution and laws of the State of Alabama (the "Issuer"), and ALABAMA POWER
COMPANY, a corporation organized and existing under the laws of the State of
Alabama (the "Company"), evidencing the agreement of the parties hereto.
RECITALS
WHEREAS, the Issuer was organized pursuant to the provisions of Act No. 648
enacted at the 1949 Regular Session of the Legislature of Alabama, as heretofore
amended, and further supplemented by Act No. 1893 enacted at the 1971 Regular
Session of the Legislature of Alabama and Act No. 510 enacted at the 1982
Regular Session of the Legislature of Alabama (said Act No. 648, as amended and
supplemented being herein called the "Act"); and
WHEREAS, under the Act the Issuer has the following, among other, powers:
(a) to acquire, whether by construction, purchase, exchange,
gift, lease, or otherwise, and to enlarge, improve, replace, equip and
maintain, one or more pollution control facilities, including all real
and personal property deemed necessary or desirable in connection
therewith,
(b) to issue its revenue bonds to pay the cost of pollution
control facilities payable solely from the revenues and receipts
derived from the leasing or sale by the Issuer of such pollution
control facilities,
(c) to lease or sell to others and otherwise dispose of all or
any portion of such pollution control facilities, and
(d) to issue its refunding bonds for the purpose of paying the
principal of, premium, if any, and interest on, its outstanding
revenue bonds; and
WHEREAS, in order to promote the health, safety and prosperity of the
citizens of the State of Alabama through the protection of its air and water
resources, the Issuer has previously undertaken to acquire, construct, install,
equip, and sell to the Company facilities, or portions thereof, designed for the
abatement or control of air and water pollution and sewage treatment and
disposal at the site of the Company's Xxxxxx Plant, located within the
geographical area of operation of the Issuer in Houston County, Alabama, which
facilities comprise the Project (hereinafter defined); and
WHEREAS, at the request of the Company, the Issuer has agreed to issue
$21,000,000 aggregate principal amount of its Pollution Control Revenue
Refunding Bonds, 1996 Series A (Alabama Power Company Project) and to apply the
proceeds from the sale thereof toward the redemption of certain of the Issuer's
pollution control revenue bonds previously issued to provide financing for the
Project;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained the receipt and sufficiency of which are hereby
acknowledged, the parties hereto formally covenant, agree, and bind themselves
as follows:
ARTICLE I
DEFINITIONS
The terms defined in the Indenture are used herein with the same
meanings given to such terms in the Indenture. In addition, the following terms
shall have the meanings set out below:
"Agreement" means this Seventh Supplementary Installment Sale Agreement
and any amendments and supplements hereto.
"Bonds" means the Pollution Control Revenue Refunding Bonds (Alabama
Power Company Project), 1996 Series A, issued by the issuer under the Indenture
in the aggregate principal amount of $21,000,000.
"Event of Default" means any of the occurrences enumerated in Section
5.1 of this Agreement.
"First Mortgage" means the Indenture dated as of June 1, 1942, as
heretofore and hereafter supplemented and amended, between the Company and
Chemical Bank, as Trustee, securing first mortgage bonds of the Company
heretofore or hereafter issued thereunder.
"Indenture" means the Indenture of Trust dated as of November 1, 1996,
relating to the Bonds, between the Issuer and SouthTrust Bank of Alabama,
National Association, as Trustee, pursuant to which the Bonds are authorized to
be issued, and including any indenture supplemental thereto.
"Original Agreement" means the Installment Sale Agreement dated as of
May 1, 1978 between the Issuer and the Company, as heretofore supplemented and
amended, excluding, however, the Supplementary Installment Sale Agreement dated
as of September 1, 1994, the Second Supplementary Installment Sale Agreement
dated as of May 1, 1995, the Third Supplementary Installment Sale Agreement
dated as of May 1, 1995, the Fourth Supplementary Installment Sale Agreement
dated as of October 1, 1995, the Fifth Supplementary Installment Sale Agreement
dated as of October 1, 1995, the Sixth Supplementary Installment Sale Agreement
dated as of October 1, 1995, and this Agreement.
"Original Indenture" means the Trust Indenture dated as of May 1, 1978
by and between the Issuer and the Trustee, as supplemented and amended by a
First Supplemental Indenture dated as of November 1, 1984, a Second Supplemental
Indenture dated as of December 1, 1984, a Third Supplemental Indenture dated as
of June 1, 1985, a Fourth Supplemental Indenture dated as of December 1, 1985, a
Fifth Supplemental Indenture dated as of December 31, 1985, a Sixth Supplemental
Indenture dated as of November 1, 1986 and a Seventh Supplemental Indenture
dated as of June 1, 1993.
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"Project" means the air and water pollution control and solid waste
disposal facilities financed and refinanced from the proceeds of the Series G
Bonds as described in Exhibit A to the Original Agreement.
"Series A Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series A (Alabama Power Company Xxxxxx Plant Project), dated May 1, 1978, in the
original aggregate principal amount of $1,650,000.
"Series B Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series B (Alabama Power Company Xxxxxx Plant Project), dated November 1, 1984,
in the original aggregate principal amount of $100,000,000.
"Series C Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series C (Alabama Power Company Xxxxxx Plant Project), dated December 1, 1984,
in the original aggregate principal amount of $50,000,000.
"Series D Bonds" means the Issuer's Pollution Control Revenue Refunding
Bonds, Series D (Alabama Power Company Xxxxxx Plant Project), dated June 1,
1985, in the original aggregate principal amount of $50,000,000, for the purpose
of refunding the Series C Bonds.
"Series E Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series E (Alabama Power Company Xxxxxx Plant Project), dated December 1, 1985,
issued in the original aggregate principal amount of $81,500,000.
"Series F Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series F (Alabama Power Company Xxxxxx Plant Project), dated December 31, 1985,
issued in the original aggregate principal amount of $21,000,000.
"Series G Bonds" means the Issuer's Pollution Control Revenue Refunding
Bonds, Series G (Alabama Power Company Xxxxxx Plant Project), dated November 1,
1986, issued in the original principal amount of $21,000,000, for the purpose of
refunding the Series F Bonds.
"Series H Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series H (Alabama Power Company Xxxxxx Plant Solid Waste Project), dated June 1,
1993, issued in the original aggregate principal amount of $9,800,000.
"Series 1994 Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds, Series 1994 (Alabama Power Company Project), dated September 1,
1994, issued in the original aggregate principal amount of $101,650,000, for the
purpose of refunding the Series A Bonds and the Series B Bonds.
"Subordinated Security Interest" means the security interest in the
Project created in Section 3.3.
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ARTICLE II
RELATIONSHIP OF AGREEMENT TO THE ORIGINAL AGREEMENT;
ISSUANCE OF THE BONDS
Section 2.1. Relationship of Agreement to the Original Agreement. The
Original Agreement was initially executed and delivered by the Issuer and the
Company in connection with the issuance and sale of the Series A Bonds and was
supplemented and amended from time to time thereafter in connection with the
issuance and sale of the Series B, C, D, E, F, G and H Bonds. Under the terms of
the Original Agreement, the Issuer agreed to finance, acquire, construct,
install and equip the Project and to sell the Project to the Company. The
Company agreed, inter alia, to assist the Issuer in the implementation of the
Project and to purchase the Project for a purchase price payable in installments
due at such times and in such amounts as would provide funds sufficient to pay
the principal of, premium, if any, and interest on all bonds issued under the
Original Indenture when due, whether at stated maturity upon redemption or
acceleration, or otherwise. The Issuer and the Company have heretofore arranged
for the redemption of the Series A Bonds, the Series B Bonds, the Series C
Bonds, the Series D Bonds, the Series E Bonds and the Series F Bonds and as a
result, the installment payments currently required of the Company under the
Original Agreement relate only to the Series G and H Bonds. Upon the redemption
of the Series G Bonds from proceeds of the Bonds, the Company will no longer be
obligated to make installment payments under the Original Agreement with respect
to the Series G Bonds but will retain its obligations with respect to the Series
H Bonds. By their execution and delivery of this Agreement, which is intended to
be complementary to the Original Agreement, the Issuer and the Company ratify
and confirm the sale of the Project to the Company pursuant to the Original
Agreement, agree to continue the Original Agreement in full force and effect
except for the provisions thereof requiring the Company to make purchase price
payments related to bonds of the Issuer which have been fully paid and redeemed,
and agree that from and after the date of this Agreement the Company will make
additional purchase price payments in installments due at such times and in such
amounts as will provide funds sufficient to pay the principal of, premium, if
any, interest on, and purchase price of all Bonds issued under the Indenture.
The parties acknowledge and confirm that the Issuer's agreement to issue the
Bonds and to apply the proceeds thereof to the redemption of the Series G Bonds
(thereby reducing the Company's payment obligations under the Original
Agreement) constitutes fair and adequate consideration for the additional
obligations undertaken by the Company pursuant to this Agreement. To the extent
that any statement in, or provision of, this Agreement conflicts with the
Original Agreement, the provisions of this Agreement shall be deemed to control.
Section 2.2. Issuance of Bonds. In order to provide funds to refund the
Series G Bonds, the Issuer agrees that it will initially issue and deliver the
Bonds to the purchasers thereof at a price to be approved in advance by the
Company and will apply and deposit the proceeds thereof in accordance with the
terms of the Indenture. The Indenture shall be satisfactory in form and
substance to the Company and shall provide the manner in which, and the purposes
for which, proceeds of Bonds may be used and invested.
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ARTICLE III
PROVISIONS FOR PAYMENT
Section 3.1. Amounts Payable. The Company agrees to pay to the Trustee,
as assignee of the Issuer, in funds which will be immediately available on the
day payment is due, from time to time as the amount owed hereunder, including
interest thereon (which interest obligation shall equal the interest and
premium, if any, on the Bonds), amounts which, and at or before times which,
shall correspond (i) to the payments in respect of 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 acceleration or
otherwise, and (ii) the purchase price of the Bonds required or permitted to be
purchased under the Indenture. If (i) at the date any payment on the Bonds is
due, available moneys are held by the Trustee under the Indenture 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 to be purchased
pursuant to Section 4.02 of the Indenture, there are any available moneys held
for the payment of the purchase price which are not being held for the purchase
of Bonds which have not been presented for purchase pursuant to Section 6 of the
form of Bonds, then, in each case, such moneys shall be credited against the
payment then due hereunder, first in respect of interest on the amount then due
and owing xxxxxxxxx and then, to the extent of remaining moneys, in respect of
principal on the amount then due and owing hereunder.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee, any paying agents and the Remarketing Agent under the
Indenture, such fees, charges, and reasonable expenses to be paid directly to
the Trustee, paying agents and Remarketing Agent 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 the Bonds, (iii) any expenses in connection with any redemption of the Bonds,
and (iv) any expenses in connection with the redemption of the Series G Bonds.
The Company also agrees that, on or before the date of redemption of
the Series G Bonds, it will pay to the Series G Trustee for deposit into the
Bond Fund held by the Series G Trustee in connection with the Series G Bonds, an
amount of funds which, when added to the proceeds of the Bonds (other than
proceeds, if any, representing accrued interest), plus any investment earnings
thereon, and any other funds available for such purpose, will be sufficient to
permit the Series G Trustee to pay the principal of, premium and accrued
interest on the Series G Bonds upon their redemption, which shall be on or
before February 11, 1997.
Section 3.2. Obligation of the Company Unconditional. The obligation of
the Company to make the payments as provided in this Agreement and to perform
and observe the other agreements on its part contained herein shall be absolute
and unconditional notwithstanding failure of the Issuer's title to the Project
or any part thereof, loss of title to (or the temporary use of) the Project by
virtue of the exercise by others of the power of eminent domain, any acts or
circumstances that may constitute failure of consideration, destruction of or
damage to the Project, commercial frustration of purpose, any change in the tax
or other laws of the United States of America or of the State of Alabama or any
political subdivision of either
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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 3.2 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 Section 3.1 hereof. The Company may, however, at its own cost and
expense and in its own name or in the name of the Issuer, prosecute or defend
any action or proceeding or take any other action involving third persons which
the Company deems reasonably necessary in order to secure or protect its right
of possession, occupancy and use of the Project hereunder, and in such event the
Issuer hereby agrees to cooperate fully with the Company and to take all action
necessary to effect the substitution of the Company for the Issuer in any such
action or proceeding if the Company shall so request.
Section 3.3. Creation of Subordinated Security Interest. As security
for the performance by the Company of its obligations under Section 3.1 hereof,
the Company hereby grants to the Issuer a security interest in the Project and
in each component thereof which has been or will be acquired hereunder by the
Company from the Issuer. It is agreed that the security interest hereby granted
is hereby made, and shall at all times be, subject to the lien of the First
Mortgage and to the lien created pursuant to the Original Agreement. The rights
of the trustee and bondholders thereunder, shall be equal in rank to, but not
superior to, any future liens created for the benefit of any indebtedness of the
Company hereafter issued under an indenture providing that any lien for the
benefit of such indebtedness shall be equal in rank to the security interest
hereby granted. Such security interest shall remain in effect until the Company
shall have satisfied its obligations under Section 3.1 hereof at which time the
Issuer shall cause the execution and delivery to the Company of such documents
as shall be necessary to effect or evidence the termination of such security
interest.
Section 3.4. Assignment and Pledge of Payments and Rights Under this
Agreement. The Issuer shall assign and pledge to the Trustee as security under
the Indenture all rights, title and interests of the Issuer in and to this
Agreement, including the Subordinated Security Interest, and all moneys
receivable hereunder (except for payments under the second and third paragraphs
of Section 3.1 and under Sections 4.3 and 5.3 hereof). The Company assents to
such assignment and hereby agrees that, as to the Trustee, its obligations to
make such payments shall be absolute and shall not be subject to any defense or
any right of set-off, counterclaim, or recoupment arising out of any breach by
the Issuer or the Trustee of any obligation to the Company, whether hereunder or
otherwise, or out of any indebtedness or liability at any time owing to the
Company by the Issuer or the Trustee.
Section 3.5. 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 providing the Company with a committed source of funds, if
needed, with which to perform its obligations under Section 3.1 hereof to
provide any funds necessary to purchase Bonds which have been
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tendered for purchase but not remarketed. The Company shall be under no
obligation to maintain the Credit Agreement in place during the term of the
Bonds, except that the Company shall not voluntarily terminate the Credit
Agreement at any time during which the Bonds are in a Commercial Paper Period.
In addition, 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. No Warranty of Suitability by the Issuer. THE ISSUER
MAKES NO WARRANTY EITHER EXPRESS OR IMPLIED AS TO THE PROJECT, INCLUDING ITS
SUITABILITY FOR THE COMPANY'S PURPOSES OR NEEDS.
Section 4.2. Use of Project. The Issuer hereby covenants and agrees
that it will not take any action, other than pursuant to the exercise of its
rights under Section 5.2 of this Agreement and under the corresponding
provisions of the Original Agreement, to prevent the Company from having
possession and enjoyment of the Project during the term of this Agreement and
will, at the request of the Company and at the Company's cost, cooperate with
the Company in order that the Company may have possession and enjoyment of the
Project.
Section 4.3. 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 hereunder, (b) any taxes, assessments,
impositions, and other charges upon payments by the Company to the Issuer
hereunder, and (c) any and all liabilities, 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 4.4. Incorporation of Certain Provisions of the Original
Agreement. The provisions of the following sections of the Original Agreement
are incorporated herein by reference with the effect that the terms of such
sections shall apply with the same force and effect as if set out in full
herein: Section 6.2 (relating to inspection of the Project); Section 6.3
(relating to maintenance of the Company's corporate existence); Section 6.4
(relating to the provision of certain financial statements); Section 5.1
(relating to maintenance of the Project); Section 5.2 (relating to removal of
portions of the Project); Section 5.3 (relating to the payment of taxes and
other governmental charges); Section 5.4 (relating to insurance); Section 5.5
(relating to eminent domain); and Section 7.1 (relating to the Company's right
to assign its interest in the Original Agreement and to lease the Project). The
provisions so incorporated shall remain in force throughout the term of this
Agreement notwithstanding any earlier termination of the Original Agreement.
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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.
The Issuer will, upon the request and at the expense of the Company,
cause the execution and delivery from time to time to the Company of such
further instruments of conveyance as are deemed by the Company to be necessary
to effect or evidence the conveyance to the Company of good and marketable title
to the Project or any portion thereof, subject to no lien other than any
Permitted Encumbrances (as defined in the Original Agreement).
Section 4.6. Tax Covenants. The Company and the Issuer covenant and
agree that they will not use or permit the use by any person of any of the funds
provided by the Issuer hereunder or any other of its funds, directly or
indirectly, or direct the Trustee to invest any funds held by it under the
Indenture or this Agreement, in such manner as would, or enter into, or allow
any "related person" to enter into, any arrangement, formal or informal, that
would, or take or omit to take any other action that would, cause any Bond to be
an "arbitrage bond" within the meaning of Section 148(a) of the Code or result
in the loss of the exclusion from gross income for federal income tax purposes
of the interest paid on the Bonds. Without limiting the generality of the
foregoing, the Company covenants and agrees to comply with the requirements of
Sections 148(d) and 148(f) of the Code 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. The Company acknowledges Section
6.03 of the Indenture and agrees to perform all duties imposed upon it by such
Section. Insofar as said Section imposes duties and responsibilities on the
Company, it is specifically incorporated herein by reference.
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 or cause to be paid that
portion of the amounts payable hereunder which is attributable to the
interest due or becoming due on any of the Bonds for a period of five
days after the same shall become due and payable.
(b) Failure by the Company to pay or cause to be paid that
portion of the amounts payable hereunder which is attributable to the
principal of, or premium, if any, on any of the Bonds when the same
shall become due and payable.
(c) Failure by the Company to pay or cause to be paid that
portion of the amounts payable hereunder which is attributable to the
purchase price on any of the Bonds after the same shall become due and
payable.
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(d) Failure by the Company to observe and perform any
covenant, condition, or agreement in this Agreement on its part to be
observed or performed, other than as referred to in subsections (a),
(b), and (c) of this Section, 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.
(e) The dissolution or liquidation of the Company, except as
permitted by Section 4.4 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.
(f) An "event of default" as defined in Section 8.01 of
the Indenture shall have occurred and be continuing.
A default under clause (d) of this Section is not an Event of Default until the
Trustee or the holders of at least 25% in principal amount of the Bonds then
outstanding give the Issuer and the Company a notice specifying the default,
demanding that it be remedied and stating that the notice is a "Notice of
Default" and the Company does not cure the default within 90 days after receipt
of the notice, or within such longer period as the Trustee shall agree to. The
Trustee shall not unreasonably refuse to agree to a longer period if the default
cannot reasonably be cured within 90 days after receipt of the notice and the
Company has begun within 90 days and continued diligent efforts to correct the
default. The foregoing provisions of clause (d) of this Section are subject to
the further qualification 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 the obligations on the part of the Company contained in Section 6.3 of the
Original Agreement (incorporated by reference in Section 4.4 hereof) and Section
4.6 hereof, the Company shall not be deemed in default 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 or of any of their departments, agencies or officials, or of any
civil or military authority; insurrections; riots; epidemics; landslides;
lightning; earthquake; fire; hurricanes; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances; explosions;
breakage or accident to machinery; 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 with all reasonable dispatch the cause or
causes 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
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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
the total amount payable under clause (i) of the first sentence of the
first paragraph of Section 3.1 of this Agreement, including the
interest thereon, to be immediately due and payable, whereupon the same
shall become immediately due and payable.
(b) The Issuer may take whatever action at law or in equity
may appear necessary or desirable to collect the amounts referred to in
(a) above then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement, or covenant of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section 5.2 shall be
paid to 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, the paying agents, and the Remarketing
Agent 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. If the
Company should breach any of the provisions of this Agreement and the Issuer or
the Trustee 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 or the Trustee
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Issuer or the Trustee.
Section 5.4. No Additional Waiver Implied by One Waiver. If any
provision contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of This Agreement. This Agreement shall remain in
full force and effect from the date hereof until such time as all of the
outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of the Indenture, whichever shall first occur,
and the fees and expenses of the Trustee, any paying agents and the
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Remarketing Agent and all other amounts payable by the Company under this
Agreement 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, if by mail to the Chairman of the Board of Directors,
at Town Hall, Columbia, Alabama 36319; if to the Trustee, to P. O. Box 2554,
Birmingham, Alabama 35290, Attention: Corporate Trust Department; if to the
Company, to 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Treasurer; and if to the Remarketing Agent, to Merchant Capital, L.L.C., 000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Muni Syndicate. 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.
Section 6.4. Severability. If 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 Under the Indenture. Any amounts remaining
under the Indenture upon termination of this Agreement shall, to the extent
provided by Section 7.03 of the Indenture, belong to and be paid to the Company
by the Trustee.
Section 6.6. Amendments. This Agreement may not be effectively terminated
except in accordance with the provisions hereof and may not be effectively
amended except by a written agreement in accordance with Article XI of the
Indenture and signed by the parties hereto.
Section 6.7. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 6.8. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Alabama.
Section 6.9. Captions. The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement.
Section 6.10. Other Financing. Notwithstanding anything in this Agreement
to the contrary, the Issuer and the Company may hereafter enter into agreements
to provide for the
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financing or refinancing of costs of the Project or any portion thereof in lieu
of or in addition to the provisions herein.
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.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF COLUMBIA
[SEAL]
By:
Chairman of the Board of Directors
ATTEST:
Secretary
ALABAMA POWER COMPANY
By:
Vice President
ATTEST:
Secretary
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STATE OF ALABAMA
COUNTY OF JEFFERSON
I, , a Notary Public in and for said county in said state, hereby
certify that Xxxxxxx X. Xxxxxxx, Xx., whose name as Chairman of the Board of
Directors of The Industrial Development Board of the Town of Columbia, a public
corporation and instrumentality under the laws of the State of Alabama, is
signed to the foregoing instrument and who is known to me, acknowledged before
me on this day that, being informed of the contents of the within instrument,
he, as such officer and with full authority executed the same voluntarily for
and as the act of said public corporation.
Given under my hand and official seal of office this 14th day of
November, 1996.
Notary Public
My Commission Expires:
[SEAL]
STATE OF ALABAMA
COUNTY OF JEFFERSON
I, , a Notary Public in and for said county in said state, hereby
certify that , whose name as _______________________ of Alabama Power Company, a
corporation organized and existing under the laws of the State of Alabama, is
signed to the foregoing instrument and who is known to me, acknowledged before
me on this day that, being informed of the contents of the within instrument,
he, as such officer and with full authority executed the same voluntarily for
and as the act of said corporation.
Given under my hand and official seal of office this 14th day of
November, 1996.
Notary Public
My Commission Expires:
[SEAL]
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