Exhibit A
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EIGHTH SUPPLEMENTARY
INSTALLMENT SALE AGREEMENT
BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF COLUMBIA
AND
ALABAMA POWER COMPANY
DATED AS OF NOVEMBER 1, 1997
$65,000,000
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF COLUMBIA
VARIABLE RATE DEMAND REVENUE BONDS
(ALABAMA POWER COMPANY PROJECT)
SERIES 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND CERTAIN RULES OF INTERPRETATION
SECTION 1.1. Definitions.................................................... 3
SECTION 1.2. Certain Rules of Interpretation................................ 6
SECTION 1.3. Relationship of Agreement to the Original Agreement............ 6
ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations by the Issuer.................................. 7
SECTION 2.2. Representations by the Company................................. 8
ARTICLE III
THE FACILITIES
SECTION 3.1. Acquisition and Construction...................................10
SECTION 3.2. Construction Fund..............................................10
ARTICLE IV
ISSUANCE OF BONDS; SECURITY; DISBURSEMENTS
SECTION 4.1. Issuance of Bonds..............................................12
SECTION 4.2. Security for the Bonds.........................................12
SECTION 4.3 Investment of Funds............................................12
ARTICLE V
COMPANY OBLIGATIONS; PROVISIONS FOR PAYMENT; COVENANTS
SECTION 5.1. Company Approval of Issuance of Bonds..........................13
SECTION 5.2. Refunding of Bonds.............................................13
SECTION 5.3. Redemption of Bonds............................................13
SECTION 5.4. Installment Sale Payments......................................13
SECTION 5.5. Purchase Price Payments of the Company.........................14
SECTION 5.6. Administrative Expenses........................................15
SECTION 5.7. Payments to Issuer.............................................15
SECTION 5.8. Obligations of the Company Absolute and Unconditional..........15
SECTION 5.9. Option to Prepay Amounts Under Agreement in Whole in
Certain Events.................. 16
SECTION 0.00.Xxxxxxx's Performance Under Indenture..........................16
SECTION 5.11.Covenants Regarding Tax Exemption..............................16
ARTICLE VI
PARTICULAR AGREEMENTS
SECTION 6.1. Issuer's Release and Indemnification Provisions................17
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SECTION 6.2. Incorporation of Certain Provisions of the Original Agreement..18
SECTION 6.3. Agreement of Issuer Not to Assign or Pledge....................18
SECTION 6.4. Reference to Bonds Ineffective After Bonds Paid................18
SECTION 6.5. Amendment of Agreement or Indenture............................18
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1. Events of Default..............................................20
SECTION 7.2. Remedies on Default............................................21
SECTION 7.3. Annulment of Acceleration......................................21
SECTION 7.4. Agreement to Pay Attorney's Fees and Expenses..................21
SECTION 7.5. General Enforcement Provisions.................................22
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Term of Agreement..............................................23
SECTION 8.2. Notices........................................................23
SECTION 8.3. Benefit of Parties.............................................24
SECTION 8.4. Severability...................................................24
SECTION 8.5. Counterparts...................................................24
SECTION 8.6. Captions.......................................................24
SECTION 8.7. Law Governing Construction of Agreement........................24
SECTION 8.8. Payments on Non-Business Days..................................24
EXHIBIT A Facilities Description
ii
EIGHTH SUPPLEMENTARY
INSTALLMENT SALE AGREEMENT
This EIGHTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT dated as of
November 1, 1997, between THE INDUSTRIAL DEVELOPMENT BOARD OF THE TOWN OF
COLUMBIA, a public corporation of the State of Alabama (the "Issuer"), and
ALABAMA POWER COMPANY, an Alabama corporation (the "Company"),
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 certain air and water pollution control and
sewage and solid waste disposal facilities (the "Project") to be installed and
operated as a part of the Company's Xxxxxx X. Xxxxxx Nuclear Plant, located
within the geographical area of operation of the Issuer in Houston County,
Alabama; and
WHEREAS, pursuant to and in accordance with the provisions of the Act,
the Issuer proposes to issue its limited obligation revenue bonds under the Act
for the purpose of financing a portion of the cost of acquiring, constructing
and improving certain sewage and solid waste disposal facilities (the
"Facilities") included in the Project, and paying the expenses of authorizing
and issuing said bonds; and
WHEREAS, as security for the payment of said bonds, the Issuer will
assign and pledge to SouthTrust Bank, National Association, as trustee (the
"Trustee") under the terms of the Trust Indenture dated as of November 1, 1997
(the "Indenture") certain rights, title and interest of the Issuer in (i) this
Agreement (except for the indemnification rights and expense reimbursement
rights contained herein), and (ii) all amounts on deposit from time to time in
the various funds created in, and subject to the conditions set forth in, the
Indenture;
NOW THEREFORE, in consideration of the covenants and agreements herein
made, and subject to the conditions herein set forth, the Issuer and the Company
contract and agree as follows:
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ARTICLE I
DEFINITIONS AND CERTAIN RULES OF INTERPRETATION
SECTION 1.1. Definitions. All words and terms as used in this Agreement
shall have the same meanings given such words and terms in the Indenture, unless
the context or use clearly indicates another or different meaning or intent. In
addition, the following words and terms as used in this Agreement shall have the
following meanings, unless the context or use clearly indicates another or
different meaning or intent:
"Agreement" means this Eighth Supplementary Installment Sale Agreement,
and all amendments and supplements hereto.
"Authorized Company Representative" means any person or persons at the
time designated to act on behalf of the Company by a written certificate, signed
on behalf of the Company by any one of its officers or authorized
representatives and furnished to the Trustee, containing the specimen signature
of each such person.
"Company" means Alabama Power Company, a corporation organized and
existing under the laws of the State of Alabama, and its successors and assigns.
"Construction Fund" means the segregated account or accounts into which
certain proceeds from the sale and delivery of the Bonds will be deposited as
provided in the Indenture.
"Costs of Issuance" means all costs and expenses incurred by the Issuer
or the Company in connection with the issuance and sale of the Bonds, including
without limitation (i) fees and expenses of accountants, attorneys, engineers,
and financial advisors, (ii) materials, supplies, and printing and engraving
costs, (iii) recording and filing fees, (iv) rating agency fees, (v) initial
fees and expenses (including, without limitation, counsel fees and expenses) of
the Trustee, (vi) any underwriters discount or fee and (vii) the Issuer's
administrative and overhead expenses as provided in Section 5.7 of this
Agreement.
"Event of Bankruptcy" means the filing of a petition in bankruptcy or
the commencement of a proceeding under the United States Bankruptcy Code or any
other applicable law concerning insolvency, reorganization or bankruptcy by or
against the Company as debtor (provided that, in the event of a filing of an
involuntary case in bankruptcy under the United States Bankruptcy Code or the
commencement of a proceeding under any other applicable law concerning
bankruptcy, insolvency or reorganization against the Company, such petition or
proceeding shall remain undismissed or unstayed for a period of sixty (60)
days).
"Facilities" means the facilities described in Exhibit A to this
Agreement as amended from time to time as provided herein, portions of the cost
of which are being financed with the proceeds of the Bonds.
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"Facilities Costs" means all costs incurred by the Issuer or the
Company, whether before or after issuance of the Bonds, with respect to the
acquisition, construction and improvement of the Facilities, including but not
limited to, the following items:
(i) Obligations incurred or assumed for labor, materials and
equipment (including obligations payable to the Company for
expenditures made or costs incurred by the Company);
(ii) Costs of any performance, payment, or surety bonds and
insurance deemed necessary or appropriate by the Company;
(iii) Costs of engineering and other services, including the costs
incurred or assumed for preliminary design and development,
surveys, estimates and plans and specifications, and for
supervising construction and performing all other duties
required by or consequent upon proper construction;
(iv) Costs which the Company shall be required to pay under the
terms of any contract or contracts in connection with the
construction, acquisition and improvement of the Facilities;
(v) Amounts which are required to be paid for taxes, assessments
and other similar charges payable during the period of
construction;
(vi) Expenses incurred in seeking to enforce any remedy against
any contractor, subcontractor or other provider of labor,
materials, equipment or services, in respect of any default,
breach or dispute relating to the Facilities;
(vii) Sums required to reimburse the Company for advances made for
any of the above items, and for any other costs incurred for
work done or caused to be done by the Company which are
properly chargeable to the Facilities;
(viii) Interest on the Bonds actually paid during or attributable
to the period of construction of the Facilities;
(ix) To the extent authorized by the Act, costs of all other
items related to the acquisition, construction and
improvement of the Facilities; and
(x) Costs of Issuance.
"Indemnified Parties" means the Issuer and any of its officers,
directors, members, commissioners, employees, agents, servants and any other
person acting for or on behalf of the Issuer.
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"Indenture" means the Trust Indenture dated as of November 1, 1997,
between the Issuer and the Trustee including all supplements and amendments
thereto.
"Installment Sale Payments" means payments required to be made by the
Company to pay the Debt Service on the Bonds, as provided for in Section 5.4 of
this Agreement and the Indenture, including the principal of, premium, if any
(whether at stated maturity, upon redemption prior to stated maturity, or upon
acceleration of stated maturity), and interest on the Bonds when due.
Installment Sale Payments do not include Purchase Price Payments.
"Issuer" means The Industrial Development Board of the Town of
Columbia, a public corporation of the State of Alabama, and its successors and
assigns.
"Original Agreement" means the Installment Sale Agreement dated as of
May 1, 1978 between the Issuer and the Company, as supplemented and amended by a
First Supplemental Agreement dated as of November 1, 1984, a Second Supplemental
Agreement dated as of December 1, 1984, a Third Supplemental Agreement dated as
of June 1, 1985, a Fourth Supplemental Agreement dated as of December 1, 1985, a
Fifth Supplemental Agreement dated as of December 31, 1985, a Sixth Supplemental
Agreement dated as of November 1, 1986, and a Seventh Supplemental Agreement
dated as of June 1, 1993.
"Plant" means the Company's Xxxxxx X. Xxxxxx Nuclear Plant located in
Houston County, Alabama.
"Prior Bonds" means all revenue bonds heretofore issued by the Issuer
to finance or refinance the costs of the Project.
"Prior Supplementary Agreements" means the Supplementary Installment
Sale Agreement between the Issuer and the Company 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
the Seventh Supplementary Installment Sale Agreement dated as of November 1,
1996.
"Project" means the air and water pollution control and sewage and
solid waste disposal facilities, including the Facilities, described in the
Original Agreement, the Prior Supplementary Agreements and the Agreement.
"Purchase Price" means the amount due a Registered Owner of any Bond
purchased or deemed purchased pursuant to and as provided in Article IV of the
Indenture which amount is payable from Purchase Price Payments and/or the
proceeds of a remarketing pursuant to the Indenture.
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"Purchase Price Payments" means the payments required to be made by the
Company in Section 5.5 of this Agreement to purchase Bonds tendered for purchase
and not remarketed pursuant to the Indenture.
"Regulations" means the applicable proposed, temporary or final Income
Tax Regulations promulgated under the Code, as such regulations may be amended
or supplemented from time to time.
SECTION 1.2. Certain Rules of Interpretation. The definitions set forth
in Article I and in the Indenture shall be equally applicable to both the
singular and plural forms of the terms therein defined and shall cover all
genders.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore",
"hereinafter" and other equivalent words refer to this Agreement and not solely
to the particular Article, Section or Subdivision hereof in which such word is
used.
Reference herein to an article number (e.g., Article IV) or a section
number (e.g., Section 6.2) shall be construed to be a reference to the
designated article number or section number hereof unless the context or use
clearly indicates another or different meaning or intent.
SECTION 1.3. Relationship of Agreement to the Original Agreement. The
Issuer has heretofore issued the Prior Bonds for the purpose of financing and
refinancing a portion of the costs of acquiring, constructing, installing and
equipping the Project. In connection therewith, and in order to provide a source
of payment of the Prior Bonds, the Issuer has sold the Project to the Company
and the Company has agreed to make certain installment purchase payments to the
Issuer, all pursuant to the terms of the Original Agreement and the Prior
Supplementary Agreements. The Bonds are being issued to finance a portion of the
costs of the Facilities not previously financed or refinanced by the Prior
Bonds. By their execution and delivery of this Agreement, which is intended to
be complementary to the Original Agreement and the Prior Supplementary
Agreements, the Issuer and the Company ratify and confirm the sale of the
Facilities to the Company pursuant to the Original Agreement, agree to continue
the Original Agreement and the Prior Supplementary Agreements, in full force and
effect except for the provisions thereof requiring the Company to make purchase
price payments related to Prior Bonds 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. To
the extent that any statement in, or provision of, this Agreement conflicts with
the Original Agreement or the Prior Supplementary Agreements, the provisions of
this Agreement shall be deemed to control.
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ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations by the Issuer. The Issuer makes the
following representations as the basis for the undertakings on its part herein
contained:
(a) Organization and Authority. The Issuer is a public corporation duly
existing under the Constitution and laws of the State. The Issuer has all
requisite power and authority under the Act (i) to adopt the Bond Resolution,
(ii) to issue the Bonds, (iii) to use the proceeds thereof to finance a portion
of the costs relating to the acquisition, construction and improvement of the
Facilities and (iv) to enter into, and perform its obligations under the
Indenture and this Agreement.
(b) Pending Litigation. To the knowledge of the Issuer, there are no
actions, suits, proceedings, inquiries or investigations pending or threatened
against or affecting the Issuer in any court or before any governmental
authority or arbitration board or tribunal which involve the possibility of
materially and adversely affecting the transactions contemplated by the
Financing Documents or which, in any way, would adversely affect the validity or
enforceability of the Financing Documents or the ability of the Issuer to
perform its obligations under the Financing Documents.
(c) Agreements Are Legal and Authorized. The adoption of the Bond
Resolution, the issuance and sale of the Bonds and the execution and delivery of
the Financing Documents, and the compliance by the Issuer with all of the
provisions of each thereof and of the Bonds (i) are within the powers and
authority of the Issuer, (ii) have been done in full compliance with the
provisions of the Act, are legal and will not conflict with or constitute on the
part of the Issuer a violation of or a breach of or default under, or result in
the creation of any lien, charge or encumbrance upon any property of the Issuer
(other than as contemplated by this Agreement and the Indenture) under the
provisions of, any by-law or other agreement or instrument to which the Issuer
is a party or by which the Issuer is bound, or any license, judgment, decree,
law, statute, order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuer or any of its activities or properties
and (iii) have been duly authorized by all necessary action on the part of the
Issuer.
(d) Governmental Consents. Neither the nature of the Issuer nor any of
its activities or properties, nor any relationship between the Issuer and any
other person, nor any circumstance in connection with the offer, issue, sale or
delivery of any of the Bonds is such as to require the consent, approval or
authorization of, or the filing, registration or qualification with, any
governmental authority on the part of the Issuer in connection with the
execution, delivery and performance of the Financing Documents or the offer,
issue, sale or delivery of the Bonds, other than those already obtained as of
the Issue Date; provided, however, no
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representation is made herein as to compliance with the securities or "blue sky"
laws of any jurisdiction.
(e) No Defaults. No event has occurred and no condition exists with
respect to the Issuer which would constitute an "Event of Default" as defined in
the Indenture or which, with the lapse of time or with the giving of notice or
both, would become an "Event of Default" under the Indenture.
(f) No Prior Pledge. Neither this Agreement nor the Installment Sale
Payments have been pledged or hypothecated in any manner or for any purpose
other than as provided in the Indenture as security for the payment of the
Bonds.
(g) Limited Obligations. The Bonds shall be limited obligations of the
Issuer and shall be payable by the Issuer solely out of the Revenues. The Bonds
shall never be payable out of any other funds of the Issuer except the Revenues.
Neither the State, the Town of Columbia, nor any other political subdivision of
the State shall be obligated to pay the principal of, premium, if any, or
interest on the Bonds. Neither the faith and credit nor the taxing power of the
State, the Town of Columbia, nor any other political subdivision of the State is
pledged to the payment of the principal of and premium, if any, or interest on
such Bonds.
(h) Facilities. Based on representations by the Company, the Issuer
represents that the Facilities constitute a project financeable under the Act.
(i) Requirements Satisfied. All requirements and conditions specified
in the Act and all other laws and regulations applicable to the adoption of the
Bond Resolution, the execution and delivery of the Financing Documents, and the
issuance and delivery of the Bonds will be fulfilled prior to the Issue Date.
SECTION 2.2. Representations by the Company. The Company makes the
following representations as the basis for the undertakings on its part herein
contained:
(a) Corporate Organization and Power. The Company (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Alabama, and (ii) has all requisite power and authority and all
necessary licenses and permits to own and operate its properties and to carry on
its business as now being conducted and as presently proposed to be conducted.
(b) Pending Litigation. There are no actions, suits, proceedings,
inquiries or investigations pending, or to the knowledge of the Company
threatened, against or affecting the Company in any court or before any
governmental authority or arbitration board or tribunal which involve the
possibility of materially and adversely affecting the transactions contemplated
by the Financing Documents or which, in any way, would adversely affect the
validity or
8
enforceability of the Bonds or the Financing Documents or the legal ability of
the Company to perform its obligations under this Agreement.
(c) Agreements Are Valid and Authorized. The execution and delivery by
the Company of this Agreement and the compliance by the Company with all of the
provisions hereof (i) are within the corporate power of the Company, (ii) will
not conflict with or result in any breach of any of the provisions of, or
constitute a default under, any material agreement, charter document, by-law or
other material instrument to which the Company is a party or by which it may be
bound, or any license, judgment decree, law, statute, order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company
or any of its activities or properties, and (iii) have been duly authorized by
all necessary action on the part of the Company.
(d) Governmental Consent. Neither the Company nor any of its business
or properties, nor any relationship between the Company and any other person,
nor any circumstances in connection with the execution, delivery and performance
by the Company of this Agreement or the offer, issue, sale or delivery by the
Issuer of the Bonds, is such as to require the consent, approval or
authorization of, or the filing, registration or qualification with, any
governmental authority on the part of the Company, other than those already
obtained as of the Issue Date; provided, however, no representation is made
herein as to compliance with the securities or "blue sky" laws of any
jurisdiction.
(e) No Defaults. No event has occurred and no condition exists with
respect to the Company that would constitute an "Event of Default" under the
Indenture or which, with the lapse of time or with the giving of notice or both,
would become an "Event of Default" under the Indenture.
(f) Facilities. The Facilities qualify as a project which is
authorized to be undertaken by the Issuer under the Act.
(g) Permits. The Company has obtained or will obtain all necessary
licenses and permits to enter into and perform this Agreement and the other
documents executed by it in connection with the issuance of the Bonds and to
acquire, construct and operate the Facilities, and the Facilities have been or
will be approved by all necessary governmental bodies or agencies having
jurisdiction.
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ARTICLE III
THE FACILITIES
SECTION 3.1. Acquisition and Construction. The portions of the
Facilities which are being financed by the Bonds have been acquired, constructed
and installed and are currently in operation at the Plant.
SECTION 3.2. Construction Fund. The Construction Fund, as defined in
and required by the Indenture, which shall be drawn on and used by the Issuer to
pay the Costs of Issuance of the Bonds and Facilities Costs when due and
payable, is hereby created. The Issuer shall deposit the proceeds from the sale
and delivery of the Bonds as follows: (1) accrued interest, if any, in the Debt
Service Fund, and (2) the remainder in the Construction Fund. The Trustee, on
behalf of the Issuer, pursuant to request of the Company, shall draw on and use
the Construction Fund as follows:
(a) Immediately after the delivery of the Bonds authorized hereby, the
Company, or the Trustee, upon direction of an Authorized Company Representative,
shall pay directly to the Issuer, the amount (if any) required to reimburse the
Issuer for its administrative and overhead expenses directly attributable and
chargeable to the Costs of Issuance of the Bonds authorized hereby.
(b) So long as no Event of Default shall have occurred and be
continuing, the Trustee shall disburse moneys from the Construction Fund to pay
Facilities Costs upon receipt of the following:
(i) a written requisition (which may incorporate the
certifications set forth in (ii) below) for such payment signed by an
Authorized Company Representative (each requisition to be numbered
consecutively);
(ii) a certificate by an Authorized Company Representative
certifying:
(A) that the obligation described in such requisition
represents a Facilities Cost and has been properly incurred in
connection with the issuance of the Bonds or the acquisition,
construction and installation of the Facilities;
(B) that such obligation is a proper charge against
the Construction Fund and has not been the basis of any
previous withdrawal from the Construction Fund;
(C) that such requisition contains no request for
payment on account of any portion of such obligation which the
Company is, as of the date of such requisition, entitled to
retain under any retained percentage agreements;
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(D) that insofar as such requisition relates to
labor, services, materials, supplies and/or equipment (1) such
labor and/or services were actually performed in a
satisfactory manner and (2) such materials, supplies and/or
equipment were actually used in or about the Plant or
delivered to the Plant for that purpose;
(E) that the expenditure of such amount to be paid,
when added to all disbursements under previous requisitions,
will result in at least 95% of the total of such disbursements
being used to provide "sewage facilities" or "solid waste
disposal facilities" within the meaning of Sections 142(a)(5)
and 142(a)(6), respectively, of the Code; and
(F) in the case of requisitions for Costs of
Issuance, that the cumulative total amount drawn thereunder
for Costs of Issuance does not exceed 2% of the proceeds of
the Bonds (exclusive of any original issue discount).
(c) The Trustee shall rely fully on any such request and certificate
delivered pursuant to this Section and shall not be required to make any
investigation in connection therewith. If amounts paid by the Trustee pursuant
to (b) above with respect to any portion of the Facilities exceed the cost
thereof, the Company shall promptly repay such overpayment into the Construction
Fund.
(d) The Issuer hereby gives its express written authority to the
Company to direct the investment of the Construction Fund by the Trustee as
hereinafter provided. The Issuer hereby finds and determines that the investment
of any money held as part of the Construction Fund in obligations hereinafter
permitted will, to the extent permitted by Section 148 of the Code, yield the
highest possible rate of return while providing necessary protection of the
principal consistent with the needs for such money under this Agreement. Any
money held as part of the Construction Fund shall be invested or reinvested by
the Trustee in the same manner as provided for in the Bond Fund. Upon
acceleration of the maturity of the Bonds pursuant to the Indenture, any amounts
held in or on deposit in the Construction Fund shall be transferred by the
Trustee to the Bond Fund.
(e) Because the Facilities have been completed and placed in service
prior to the issuance of the Bonds, the parties anticipate that the entire
proceeds of the Bonds deposited in the Construction Fund will be withdrawn on
the Issue Date to reimburse the Company for Facilities Costs already incurred by
the Company.
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ARTICLE IV
ISSUANCE OF BONDS; SECURITY; DISBURSEMENTS
SECTION 4.1. Issuance of Bonds. In order to provide funds to finance
the acquisition, construction and improvement of the Facilities (or to reimburse
the Company for the costs thereof), the Issuer, concurrently with the execution
of this Agreement, will sell, issue and deliver to the initial purchasers
thereof the Bonds, all in accordance with the Indenture.
SECTION 4.2. Security for the Bonds. The obligations of the Company
under this Agreement, including specifically the obligation to pay Installment
Sale Payments, Purchase Price Payments and Administrative Expenses and its
obligations under Article V hereof shall be direct general obligations of the
Company. Prior to or simultaneously with the issuance of the Bonds, the Issuer
will assign to the Trustee under the terms of the Indenture all of the Issuer's
right, title, and interest in and to this Agreement including specifically the
Installment Sale Payments but excepting certain sums payable to the Issuer, the
Trustee and the Remarketing Agent under Sections 5.6, 5.7, 6.1 and 7.3 of this
Agreement and the Issuer's rights under Section 6.1 of this Agreement to
indemnification.
SECTION 4.3 Investment of Funds. The Issuer hereby gives its express
written authority to the Company as provided in the Indenture to direct the
investment of the Debt Service Fund or any other Fund held by the Trustee
pursuant to the Indenture. The Issuer hereby finds and determines that such
investment of moneys in any Fund in obligations permitted by the Indenture will
yield the highest possible rate of return while providing necessary protection
of the principal consistent with the needs for such money under this Agreement
and the Indenture.
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ARTICLE V
COMPANY OBLIGATIONS; PROVISIONS FOR PAYMENT; COVENANTS
SECTION 5.1. Company Approval of Issuance of Bonds. The Company hereby
approves the Bond Resolution and the Indenture. It is hereby agreed that the
foregoing approval of the Bond Resolution and the Indenture constitutes the
acknowledgment and agreement of the Company that the Bonds, when issued, sold
and delivered as provided in the Bond Resolution and the Indenture, will be
issued in accordance with and in compliance with this Agreement, notwithstanding
any other provisions of this Agreement or any other contract or agreement to the
contrary. Any Registered Owner is entitled to rely fully and unconditionally on
the foregoing approval. Notwithstanding any provisions of this Agreement or any
other contract or agreement to the contrary, the Company's approval of the Bond
Resolution and the Indenture shall be the Company's agreement that all covenants
and provisions in this Agreement and the Indenture affecting the Company shall,
upon the delivery of the Bonds and the Indenture, become unconditional, valid
and binding covenants and obligations of the Company so long as the Bonds and
the interest thereon are outstanding and unpaid. Particularly, the obligation of
the Company to pay, promptly when due, all Installment Sale Payments and
Purchase Price Payments specified in this Agreement and the Indenture shall be
absolute and unconditional and said obligation may be enforced as provided in
this Agreement and the Indenture.
SECTION 5.2. Refunding of Bonds. After the issuance of any Bonds, the
Issuer shall not refund any of the Bonds or change or modify the Bonds in any
way, except as provided for in the Indenture, without the prior written approval
of an Authorized Company Representative; nor shall the Issuer redeem any Bonds
prior to the Maturity Date except upon the request of an Authorized Company
Representative, unless such redemption is required by the Indenture.
SECTION 5.3. Redemption of Bonds. The Issuer, upon the written request
of the Company (and provided that the affected Bonds are subject to redemption
prior to maturity at the option of the Issuer, or the Company, and provided that
such request is received in sufficient time prior to the date upon which such
redemption is proposed), shall promptly take or cause to be taken all action
that may be necessary under the applicable redemption provisions to effect such
redemption prior to maturity, to the full extent of funds either made available
for such purpose by the Company or already on deposit in the Redemption Fund and
available for such purpose. The redemption of any Outstanding Bonds prior to
maturity at any time shall not relieve the Company of its absolute and
unconditional obligation to pay each remaining Installment Sale Payment, with
respect to any Outstanding Bonds, as specified in the Indenture. If a redemption
of Bonds is required pursuant to the provisions of the Indenture, the Company
agrees as provided herein to promptly make Installment Sale Payments sufficient
to pay the principal of, premium, if any, and interest on the Bonds due on such
redemption date.
SECTION 5.4. Installment Sale Payments. (a) The Company hereby
covenants and agrees to make the Installment Sale Payments, as hereinafter
provided in subsections (b), (c),
13
and (e) of this Section, to the Trustee, or the Paying Agent for the account of
the Trustee, on behalf of the Issuer in accordance with this Agreement.
(b) The Company shall make Installment Sale Payments, subject to the
limitations of subsection (e) below of this Agreement, in immediately available
funds directly to the Trustee or for the account of the Trustee with the Paying
Agent for deposit in the Debt Service Fund on or before each day on which any
payment of Debt Service shall become due (whether at maturity or upon redemption
or acceleration or otherwise) in an amount which, together with other money held
by the Trustee under the Indenture and available therefor, will enable the
Trustee to make such payment in full when due.
(c) If the Company should fail to make any of the payments required in
this Section, the item or installment so in default shall continue as an
obligation of the Company until the amount in default shall have been fully
paid, and the Company agrees to pay the same with interest thereon, to the
extent permitted by law, from the date when such payment was due as provided in
the Indenture.
(d) If, subsequent to a date on which the Company is obligated to pay
the Installment Sale Payments (subject to provisions of Article XV of the
Indenture), losses (net of gains) shall be incurred in respect of any
investments, or any other event has occurred causing the money in the Debt
Service Fund, together with any other money then held by the Trustee and
available for the purpose, to be less than the amount sufficient at the time of
such occurrence or other event to pay, in accordance with the provisions of the
Indenture, all Debt Service due and payable or to become due and payable, the
Trustee shall notify the Company of such fact and thereafter the Company, as and
when required for purposes of such Debt Service Fund, shall pay in immediately
available funds to the Trustee for deposit in the Debt Service Fund the amount
of any such reduction below such sufficient amount.
(e) The Company further agrees that in the event payment of the
principal of and the interest on the Bonds is accelerated upon the occurrence of
an Event of Default under the Indenture, all amounts payable under Section
5.4(b) for the remainder of the term hereof (other than interest not yet due)
shall be immediately due and payable.
(f) Any amount held in the Debt Service Fund on any payment date
specified in subsection (b) above shall be credited against the Installment Sale
Payments required to be made by the Company on such date.
SECTION 5.5. Purchase Price Payments of the Company. (a) In addition to
the amounts payable by the Company under Section 5.4, on or prior to each date
on which the Paying Agent is required to disburse the Purchase Price for any
Bond, the Company will pay or cause to be paid, as necessary, by the time and in
the manner specified in the Indenture, the Purchase Price Payments to the Paying
Agent (as agent for the Registered Owners), in lawful money of the United States
of America (as required by the Indenture) which will be held in trust
14
for the benefit of the tendering Registered Owners or the Registered Owners of
Bonds that are deemed to have been tendered in an amount which, together with
any amounts available to the Paying Agent for said purpose, will be sufficient
to pay the Purchase Price for all Bonds which are to be purchased on such date.
(b) The Issuer shall have no obligation, financial or otherwise, with
respect to payment of the Purchase Price of any Bonds required to be purchased
pursuant to the Indenture, or for arrangements therefor, except that the Issuer
shall generally cooperate with the Company, the Trustee, the Paying Agent and
the Remarketing Agent, as contemplated in the Indenture.
SECTION 5.6. Administrative Expenses. The Company shall pay, or cause
to be paid, an amount equal to (i) the reasonable fees and charges of the
Trustee for services rendered as Trustee under the Indenture and its reasonable
expenses incurred as Trustee under the Indenture, including reasonable fees of
its counsel and (ii) the reasonable fees and charges of the Paying Agent and the
reasonable expenses incurred by the Paying Agent as and when the same become
due, including the reasonable fees of its counsel. In addition, the Company
shall indemnify and hold harmless the Paying Agent from and against any and all
losses, liabilities, claims, actions, damages, and expenses arising out of or in
connection with the Indenture.
SECTION 5.7. Payments to Issuer. The Company shall pay all of the
Issuer's reasonable, actual out-of-pocket expenses and costs of issuance in
connection with the Bonds, including, without limitation, all financing, legal,
printing, and other expenses and costs of issuance incurred in issuing the
Bonds. Also, in the future the Company shall pay to the Issuer, upon receipt of
statements therefore from time to time, such amounts as are necessary to pay or
reimburse the Issuer for its reasonable and necessary expenses and costs
attributable to the Bonds and the Facilities.
SECTION 5.8. Obligations of the Company Absolute and Unconditional. The
obligations of the Company to make the payments required in Sections 5.4, 5.5,
5.6, 5.7, 5.11, 6.1 and 7.3 and to perform and observe the other agreements on
its part contained herein shall be absolute and unconditional and shall not be
subject to diminution by set-off, counterclaim, abatement or otherwise. Until
payment of all Debt Service relating to the Bonds, and payment in full of the
Purchase Price of any Bonds purchased pursuant to the Indenture, the Company (a)
will not suspend or discontinue any payments provided for in this Agreement,
except to the extent the same have been prepaid, (b) will perform and observe
all its other agreements contained herein, and (c) except as provided in Section
6.2, will not terminate this Agreement for any cause, including, without
limiting the generality of the foregoing, any acts or circumstances that may
constitute failure of consideration, sale, loss, eviction or constructive
eviction, destruction of or damage to the Facilities, commercial frustration of
purpose, any change in the tax or other laws of the United States of America or
of the State or any political subdivision of either, 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 in connection herewith or with
the Indenture. Nothing contained in this Section shall be construed to release
the Issuer
15
from the performance of any of the agreements on its part herein contained and
in the event the Issuer shall fail to perform any such agreement on its part,
the Company may take such action as the Company may deem necessary to perform or
compel performance, provided that no such action shall violate the agreements on
the part of the Company contained in this Agreement or postpone or diminish the
amounts required to be paid by the Company pursuant to this Agreement. Upon the
issuance and delivery of the Bonds to the initial purchasers thereof the Company
shall have received, and the Issuer shall have given, full and complete
consideration for the Company's obligation hereunder to make Installment Sale
Payments.
SECTION 5.9. Option to Prepay Amounts Under Agreement in Whole in
Certain Events. The Company shall have, and is hereby granted, the option to
prepay the amounts required to be paid by the Company under Section 5.4 in whole
and to direct the Trustee to redeem the Bonds in whole if any of the events
described in the Indenture permitting such redemption shall have occurred. The
Company may at any time deliver money, and/or Government Obligations to the
Trustee with instructions to the Trustee to hold such money and/or Government
Obligations pursuant to Article XV of the Indenture in connection with a
discharge of the Indenture.
The Issuer agrees that, at the request at any time of the Company, it
will cooperate with the Company to cause the Bonds or any portion thereof to be
redeemed to the extent permitted by the Indenture.
SECTION 5.10. Company's Performance Under Indenture. The Company
agrees, for the benefit of the Owners, to do and perform all acts and things
contemplated in the Indenture to be done or performed by it and to not interfere
with the exercise of the power and authority granted to the Trustee and the
Paying Agent in the Indenture. The Company further agrees to aid in furnishing
any documents, certificates or opinions that may be required under the
Indenture.
SECTION 5.11. Covenants Regarding Tax Exemption. It is the intention of
the Company and the Issuer that the interest on the Tax Exempt Bonds be
excludable from the gross income of the holders thereof for federal income tax
purposes by reason of Sections 103(a) and 142(a) of the Code, except for any Tax
Exempt Bond for any period that such Bond is owned by a person who is a
"substantial user" of the Facilities or a "related person" within the meaning of
Section 147(a) of the Code and that substantially all of the proceeds of the
Bonds will be used to provide "sewage facilities" and "solid waste disposal
facilities" within the meaning of Sections 142(a)(5) and (6) of the Code. To
that end, the Company and the Issuer (to the extent reasonably within the
control of the Issuer) covenant with each other, and with the Trustee, to
refrain from any action which would adversely affect, or to take such action to
assure, the treatment of the Tax Exempt Bonds as obligations described in
Section 103(a) of the Code, the interest on which is not includable in the
"gross income" of the holder (other than the income of a "substantial user" of
the Facilities or a "related person" within the meaning of Section 147(a) of the
Code) for purposes of federal income taxation.
16
ARTICLE VI
PARTICULAR AGREEMENTS
SECTION 6.1. Issuer's Release and Indemnification Provisions. The
Company agrees, whether or not the transactions contemplated by this Agreement
and the Indenture shall be consummated:
(a) to pay, and save the Issuer harmless against liability for the
payment of all reasonable out-of-pocket expenses arising in connection with said
contemplated transactions, including the reasonable fees and expenses of counsel
to the Issuer; and
(b) to protect, indemnify and save the Indemnified Parties harmless
from and against all liability, losses, damages, costs, reasonable expenses
(including reasonable counsel fees), taxes, causes of action, suits, claims,
demands and judgments of any nature or form, by or on behalf of any person
arising in any manner from the transactions of which this Agreement is a part or
arising in any manner in connection with the Facilities or the financing or
refinancing of the Facilities, and, without limiting the generality of the
foregoing, arising from (i) the issuance, offering, sale, or delivery of the
Bonds, the Indenture, the Underwriting Agreement and this Agreement and the
obligations imposed on the Issuer hereby and thereby, or the design,
construction, installation, operation, use, occupancy, maintenance, or ownership
of the Facilities; (ii) any written statements or representations made or given
by the Company or any of its officers or employees to the Indemnified Parties,
the Trustee, or any underwriters or purchasers of any of the Bonds, with respect
to the Issuer, the Company, the Facilities, the Bonds, the Underwriting
Agreement or the Remarketing Agreement, including, but not limited to,
statements or representations of facts, financial information, or corporate
affairs; (iii) damage to property or any injury to or death of any person that
may be occasioned by any cause whatsoever pertaining to the Facilities; (iv) any
breach or default on the part of the Company in the performance of any of its
obligations under this Agreement; (v) any violation of contract, agreement or
restriction by the Company relating to the Facilities; or (vi) any violation of
law, ordinance or regulation affecting the Facilities or any part thereof or the
ownership or occupancy or use thereof.
If any action or proceeding is brought against the Issuer by reason of
any such claim, such action or proceeding shall be defended against by counsel
to the Issuer or by the Company, as the Issuer, upon advice of counsel to the
Issuer, shall determine. If such defense is by counsel to the Issuer on behalf
of the Issuer, the Company shall indemnify the Issuer for reasonable costs of
counsel to the Issuer allocated to such defense and charged to the Issuer. The
Company, upon notice from the Issuer, shall resist and defend such an action or
proceeding on behalf of the Issuer.
The provisions of this Section shall not apply to any claim or
liability resulting from the Issuer's acts of gross negligence, bad faith, fraud
or deceit or for any claim or liability which
17
the Company was not given the opportunity to contest (except as set forth in the
preceding paragraph), due to the gross negligence of the Issuer.
The provisions of this Section shall survive the termination of this
Agreement.
SECTION 6.2. 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.
SECTION 6.3. Agreement of Issuer Not to Assign or Pledge. Except for
the assignment and pledge described in the Indenture, the Issuer agrees that it
will not attempt to further assign, pledge, transfer or convey its interest in
or create any assignment, pledge, lien, charge or encumbrance of any form or
nature with respect to the rights and interests therein described.
SECTION 6.4. Reference to Bonds Ineffective After Bonds Paid. Upon
payment of all Debt Service due relating to the Bonds, payment in full of the
Purchase Price of Bonds required to be purchased pursuant to the Indenture, and
payment of all fees and charges of the Issuer, the Trustee and the Paying Agent,
all references herein to the Bonds and the Trustee shall be ineffective and
neither the Issuer, the Trustee nor the holders of any of the Bonds shall
thereafter have any rights hereunder and the Company shall have no further
obligation hereunder, saving and excepting those that shall have theretofore
vested and any right of the Issuer or the Trustee to indemnification under
Section 6.1 and payment of fees under Section 7.3, which rights shall survive
the payment of all Debt Service due relating to the Bonds and the termination of
this Agreement. Reference is hereby made to Article XV of the Indenture.
SECTION 6.5. Amendment of Agreement or Indenture. No amendment, change,
addition to, or waiver of any of the provisions of this Agreement or the
Indenture shall be binding upon the parties hereto unless in writing signed by
an Authorized Company Representative and the Chairman or Vice Chairman of the
Board of Directors of the Issuer.
Notwithstanding any of the foregoing, it is covenanted and agreed, for
the benefit of the Registered Owners and the Trustee, that (without the
concurrence of all of the Registered Owners and the Trustee) the provisions of
this Agreement shall not be amended, changed, added
18
to or waived in any way which would relieve or abrogate the obligations of the
Company to make or pay, or cause to be made or paid, when due, all Installment
Sale Payments and Purchase Price Payments with respect to any then Outstanding
Bonds in the manner and under the terms and conditions provided herein and the
Bond Resolution or the Indenture, or which would materially change or affect
Sections 5.4 through 5.8, 5.11, 6.1 and 7.3.
19
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1. 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 any
Installment Sale Payment payable hereunder or any amount which is
attributable to the Purchase Price of any Bonds for a period of one
Business Day after the same shall become due and payable (except when
the Rate Period is one year or longer, in which case the grace period
shall be five Business Days); or
(b) 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 subsection (a) 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; or
(c) The occurrence of an Event of Bankruptcy; or
(d) An "event of default" as defined in Section 10.01 of the
Indenture shall have occurred and be continuing.
A default under clause (b) 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 (b) 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 6.2 hereof) and
Sections 5.4 and 5.5 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;
20
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 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 7.2. Remedies on Default. Whenever any Event of Default shall
have occurred and be continuing, the Issuer (or the Trustee) 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 or the
Trustee may declare the total Installment Sale Payments payable under
Section 5.4 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 or the Trustee 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 7.2 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 Agent, and the Remarketing
Agent and all other amounts required to be paid under the Indenture shall have
been paid, to the Company.
SECTION 7.3. Annulment of Acceleration. If, in compliance with the
requirements of Section 10.2 of the Indenture, the Trustee shall annul an
acceleration declared due to any Event of Default under the Indenture such
annulment shall be deemed to also rescind any acceleration of all payments
required under Section 5.4 of this Agreement. In case of any such annulment, or
in case any proceeding taken by the Trustee on account of any such Event of
Default shall have been discontinued or abandoned or determined adversely, then
and in every such case the Issuer, the Company, the Trustee and the Registered
Owners shall be restored to their former positions and rights hereunder, but no
such annulment shall extend to any subsequent or other Event of Default or
impair any right consequent thereon.
SECTION 7.4. Agreement to Pay Attorney's Fees and Expenses. If the
Company should default under any of the provisions of this Agreement and the
Issuer or the Trustee should employ attorneys or incur other expenses for the
collection of payments required
21
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 upon demand therefor pay to the Issuer or the Trustee the reasonable fee
of such attorneys and such other expenses so incurred by the Issuer or the
Trustee.
SECTION 7.5. General Enforcement Provisions. (a) The terms of this
Agreement may be enforced as to one or more breaches either separately or
cumulatively.
(b) No remedy conferred upon or reserved to the Issuer, the Trustee, or
the Registered Owners of the Bonds in this Agreement is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy 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, omission, or failure of performance
hereunder shall impair any such right or power or shall be construed to be a
waiver thereof but any such right and power may be exercised from time to time
and as often as may be deemed expedient. In the event any provision contained in
this Agreement should be breached by the Company and thereafter duly waived,
such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach of this Agreement. No waiver by any party of
any breach by any other party of any of the provisions of this Agreement shall
be construed as a waiver of any subsequent breach, whether of the same or of a
different provision of this Agreement.
22
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Term of Agreement. This Agreement shall terminate when
payment of all Debt Service relating to the Bonds shall have been made.
SECTION 8.2. Notices. All notices, approvals, consents, requests and
other communications hereunder shall be in writing and shall be deemed to have
been given when delivered or mailed by first class registered or certified mail
return receipt requested, postage prepaid, and addressed as follows:
(a) If to the Issuer:
The Industrial Development Board
of the Town of Xxxxxxxx
Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chairman
(b) If to the Company:
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
(c) If to the Trustee:
SouthTrust Bank, National Association
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust
23
(d) If to the Paying Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
A duplicate copy of each notice, approval consent, request or other
communication given hereunder by the Issuer, the Company or the Trustee to any
one of the others shall also be given to all of the others. The Issuer, the
Company and the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, approvals, consents, requests
or other communications shall be sent or persons to whose attention the same
shall be directed.
SECTION 8.3. Benefit of Parties. This Agreement is made for the
exclusive benefit of the Issuer, the Trustee, the Paying Agent, the Remarketing
Agent, the Registered Owners, the Company, and their respective successors and
assigns herein permitted, and not for any other third party or parties; and
nothing in this Agreement, expressed or implied, is intended to confer upon any
party or parties other than the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent, the Registered Owners, the Company and their respective
successors and assigns herein permitted, any rights or remedies under or by
reason of this Agreement.
SECTION 8.4. Severability. If any provision hereof 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 8.5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
SECTION 8.6. Captions. The captions and headings herein are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions hereof.
SECTION 8.7. Law Governing Construction of Agreement. This Agreement
shall be governed by, and construed in accordance with, the laws of the State.
SECTION 8.8. Payments on Non-Business Days. If any payment required
hereunder is due on a date not a Business Day, payment shall be made on the next
succeeding Business Day with the same force and effect as if made on the date
fixed for such payment, and no interest shall accrue on such amount for the
period after such date.
24
IN WITNESS WHEREOF, the Issuer has caused this Agreement to be executed
by the Chairman or Vice Chairman of its Board of Directors and its seal to be
hereunto affixed and attested by its Secretary or Assistant Secretary and the
Company has caused this Indenture to be executed by its duly authorized officer,
all as of the day and year first above written.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF COLUMBIA
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
Chairman of the Board of Directors
[SEAL]
ATTEST:
By: /s/ X. X. Xxxxxxx
Secretary
ALABAMA POWER COMPANY
By: /s/ Art X. Xxxxxxx
Title: Vice President, Secretary and Treasurer
25
EXHIBIT A
FACILITIES DESCRIPTION
The Facilities consist of the following sewage and solid waste disposal
facilities serving Units 1 and 2 of the Plant:
(i) Solid Radwaste Systems;
(ii) Landfill Area;
(iii) Spent Fuel Storage Systems;
(iv) Water Treatment Plant; and
(v) Sewage Treatment System.
