Exhibit B
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE TOWN OF COLUMBIA
and
ALABAMA POWER COMPANY
ELEVENTH SUPPLEMENTARY
INSTALLMENT SALE AGREEMENT
Dated as of June 1, 1999
Relating to
$25,000,000
Pollution Control Revenue Refunding Bonds
(Alabama Power Company Project)
Series 1999-B
ELEVENTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of
reference only and is not a part of this Eleventh
Supplementary Installment Sale Agreement)
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS......................................2
ARTICLE II
RELATIONSHIP OF AGREEMENT TO THE ORIGINAL AGREEMENT
AND THE PRIOR SUPPLEMENTARY AGREEMENTS;
ISSUANCE OF THE BONDS
Section 2.1. Relationship of Agreement to the Original Agreement........3
Section 2.2. Issuance of Bonds..........................................4
ARTICLE III
PROVISIONS FOR PAYMENT
Section 3.1. Amounts Payable............................................4
Section 3.2. Obligation of the Company Unconditional....................5
Section 3.3. [reserved].................................................5
Section 3.4. Assignment and Pledge of Payments and Rights Under
this Agreement.............................................5
ARTICLE IV
SPECIAL COVENANTS
Section 4.1. No Warranty of Suitability by the Issuer...................6
Section 4.2. Use of Project.............................................6
Section 4.3. Indemnity Against Claims...................................6
Section 4.4. Incorporation of Certain Provisions of the Original
Agreement..................................................6
Section 4.5. Further Assurances and Corrective Instruments..............6
Section 4.6. Tax Covenants..............................................7
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default..........................................7
Section 5.2. Remedies on Default........................................9
Section 5.3. Agreement to Pay Attorneys' Fees and Expenses..............9
Section 5.4. No Additional Waiver Implied by One Waiver.................9
ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of This Agreement....................................10
Section 6.2. Notices...................................................10
Section 6.3. Binding Effect............................................10
Section 6.4. Severability..............................................10
Section 6.5. Amounts Remaining Under the Indenture.....................10
Section 6.6. Amendments................................................10
Section 6.7. Execution in Counterparts.................................10
Section 6.8. Applicable Law............................................11
Section 6.9. Captions..................................................11
Section 6.10. Other Financing...........................................11
This ELEVENTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT dated as of June
1, 1999, 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"), evidences 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. 82-510 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 powers, among
others:
(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, water and
natural resources, the Issuer has previously undertaken to acquire, construct,
install, equip, and sell to the Company facilities, or portions thereof, certain
air and water pollution control and sewage and solid waste disposal facilities
installed and to be installed 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, which facilities comprise the Project (hereinafter
defined); and
WHEREAS, at the request of the Company, the Issuer has agreed to issue
$25,000,000 aggregate principal amount of its Pollution Control Revenue
Refunding Bonds (Alabama Power Company Project), Series 1999-B, and to apply the
proceeds from the sale thereof toward the redemption of certain of the Issuer's
revenue bonds previously issued to provide financing or refinancing 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 Eleventh Supplementary Installment Sale
Agreement and any amendments and supplements hereto.
"Bonds" means the Pollution Control Revenue Refunding Bonds (Alabama
Power Company Project), Series 1999-B, issued by the Issuer under the Indenture
in the aggregate principal amount of $25,000,000.
"Event of Default" means any of the occurrences enumerated in Section
5.1 of this Agreement.
"Indenture" means the Trust Indenture dated as of June 1, 1999,
relating to the Bonds, between the Issuer and SouthTrust Bank, 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 Prior Supplementary Agreements and this
Agreement.
"Prior Bonds" means all revenue bonds heretofore issued by the Issuer
to finance or refinance the costs of the Project.
"Prior Indenture" means the Trust Indenture dated as of May 1, 1978, by
and between the Issuer and the Trustee, as supplemented and amended.
"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, the
Seventh Supplementary Installment Sale Agreement dated as of November 1, 1996,
the Eighth Supplementary Installment Sale Agreement dated as of November 1,
1997, and the Ninth Supplementary Installment Sale Agreement dated as of June 1,
1998.
"Project" means the air and water pollution control and sewage and
solid waste disposal facilities financed and refinanced from the proceeds of the
Prior Bonds, including specifically the facilities financed from the proceeds of
the Series 1994 Bonds, as described in Exhibit A to the Original Agreement.
"Series 1994 Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds, Series 1994 (Alabama Power Company Project) issued on September
27, 1994, in the original aggregate principal amount of $101,650,000.
"Series 1999-A Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds (Alabama Power Company Project), Series 1999-A, to be issued
concurrently with the Bonds in the aggregate principal amount of $51,650,000.
"Series 1999-C Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds (Alabama Power Company Project), Series 1999-C, to be issued
concurrently with the Bonds in the aggregate principal amount of $25,000,000.
ARTICLE II
RELATIONSHIP OF AGREEMENT TO THE ORIGINAL AGREEMENT
AND THE PRIOR SUPPLEMENTARY AGREEMENTS;
ISSUANCE OF THE BONDS
Section 2.1. Relationship of Agreement to the Original Agreement. The
Original Agreement and the Prior Supplementary Agreements were executed and
delivered by the Issuer and the Company in connection with the issuance and sale
of the Prior Bonds, including the Series 1994 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 the Prior Bonds when due, whether
at stated maturity upon redemption or acceleration, or otherwise. Upon the
redemption of the Series 1994 Bonds from proceeds of the Bonds, the Series
1999-A Bonds and the Series 1999-C Bonds, the Company will no longer be
obligated to make installment payments under the Prior Supplementary Agreements
with respect to the Series 1994 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 Project 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 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 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 1994 Bonds (thereby reducing the Company's payment
obligations under the Prior Supplementary Agreements) 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 or the Prior
Supplementary Agreements, the provisions of this Agreement shall be deemed to
control.
Section 2.2. Issuance of Bonds. In order to provide a portion of the
funds necessary to refund the Series 1994 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.
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, the paying agent and the Remarketing Agent under the
Indenture, such fees, charges, and reasonable expenses to be paid directly to
the Trustee, the paying agent and the 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
1994 Bonds.
The Company also agrees that, on or before the date of redemption of
the Series 1994 Bonds, it will pay to the Series 1994 Trustee for deposit into
the Bond Fund held by the Series 1994 Trustee in connection with the Series 1994
Bonds, an amount of funds which, when added to the proceeds of the Bonds, the
Series 1999-A Bonds and the Series 1999-C 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
1994 Trustee to pay the principal of, premium and accrued interest on the Series
1994 Bonds upon their redemption, which shall occur no later than 90 days after
the date of issuance of the Bonds.
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 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. [reserved].
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, 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.
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 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); 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); 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 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.
(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, unless extended
prior to the expiration of such period as described below.
(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 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 agent, 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, the paying agent and the 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 000 Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, 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, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000. 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, the Trustee and the Remarketing Agent 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 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:
By:
Secretary
ALABAMA POWER COMPANY
By:
Vice President
ATTEST:
By:
Secretary
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 ________ day of
June, 1999.
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 ________ day of
June, 1999.
Notary Public
My Commission Expires:
[SEAL]
