Exhibit A
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE TOWN OF COLUMBIA
and
ALABAMA POWER COMPANY
FOURTH SUPPLEMENTARY
INSTALLMENT SALE AGREEMENT
Dated as of October 1, 1995
Relating to
$28,000,000
Pollution Control Revenue Refunding Bonds, 1995 Series C
(Alabama Power Company Project)
FOURTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and is not a part
of this Fourth Supplementary Installment Sale Agreement)
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I . . . . . . . . . . . . . . 2
DEFINITIONS . . . . . . . . . . . . . . 2
ARTICLE II . . . . . . . . . . . . . . 4
RELATIONSHIP OF AGREEMENT TO THE ORIGINAL AGREEMENT;
ISSUANCE OF THE BONDS . . . . . . . . . . . 4
Section 2.1. Relationship of Agreement to the Original Agreement . . 4
Section 2.2. Issuance of Bonds . . . . . . . . . . . . . . . . . . . 5
ARTICLE III . . . . . . . . . . . . . . 5
PROVISIONS FOR PAYMENT . . . . . . . . . . . 5
Section 3.1. Amounts Payable . . . . . . . . . . . . . . . . . . . . 5
Section 3.2. Obligation of the Company Unconditional . . . . . . . . 6
Section 3.3. Creation of Subordinated Security Interest . . . . . . 6
Section 3.4. Assignment and Pledge of Payments and Rights
Under this Agreement . . . . . . . . . . . . . . . . . 7
Section 3.5. Provision of Credit Agreement . . . . . . . . . . . . . 7
ARTICLE IV . . . . . . . . . . . . . . 7
SPECIAL COVENANTS . . . . . . . . . . . . 7
Section 4.1. No Warranty of Suitability by the Issuer . . . . . . . 7
Section 4.2. Use of Project . . . . . . . . . . . . . . . . . . . . 7
Section 4.3. Indemnity Against Claims . . . . . . . . . . . . . . . 7
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Section 4.4. Incorporation of Certain Provisions of the
Original Agreement . . . . . . . . . . . . . . . . . . 8
Section 4.5. Further Assurances and Corrective Instruments . . . . . 8
Section 4.6. Tax Covenants . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V . . . . . . . . . . . . . . 9
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . 9
Section 5.1. Events of Default . . . . . . . . . . . . . . . . . . . 9
Section 5.2. Remedies on Default . . . . . . . . . . . . . . . . . . 10
Section 5.3. Agreement to Pay Attorneys' Fees and Expenses . . . . . 11
Section 5.4. No Additional Waiver Implied by One Waiver . . . . . . 11
ARTICLE VI . . . . . . . . . . . . . . 11
MISCELLANEOUS . . . . . . . . . . . . . 11
Section 6.1. Term of This Agreement . . . . . . . . . . . . . . . . 11
Section 6.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.3. Binding Effect . . . . . . . . . . . . . . . . . . . . 12
Section 6.4. Severability . . . . . . . . . . . . . . . . . . . . . 12
Section 6.5. Amounts Remaining Under the Indenture . . . . . . . . . 12
Section 6.6. Amendments . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.7. Execution in Counterparts . . . . . . . . . . . . . . . 12
Section 6.8. Applicable Law . . . . . . . . . . . . . . . . . . . . 12
Section 6.9. Captions . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.10. Other Financing . . . . . . . . . . . . . . . . . . . . 12
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FOURTH SUPPLEMENTARY INSTALLMENT SALE AGREEMENT dated as of October 1,
1995 between THE INDUSTRIAL DEVELOPMENT BOARD OF THE TOWN OF COLUMBIA, a
public corporation duly created and validly existing pursuant to the
constitution and laws of the State of Alabama (the "Issuer"), and ALABAMA
POWER COMPANY, a corporation organized and existing under the laws of the
State of Alabama (the "Company"), evidencing the agreement of the parties
hereto.
RECITALS
WHEREAS, the Issuer was organized pursuant to the provisions of Act No.
648 enacted at the 1949 Regular Session of the Legislature of Alabama, as
heretofore amended, and further supplemented by Act No. 1893 enacted at the
1971 Regular Session of the Legislature of Alabama and Act No. 510 enacted at
the 1982 Regular Session of the Legislature of Alabama (said Act No. 648, as
amended and supplemented being herein called the "Act"); and
WHEREAS, under the Act the Issuer has the following, among other,
powers:
(a) to acquire, whether by construction, purchase,
exchange, gift, lease, or otherwise, and to enlarge, improve,
replace, equip and maintain, one or more pollution control
facilities, including all real and personal property deemed
necessary or desirable in connection therewith,
(b) to issue its revenue bonds to pay the cost of
pollution control facilities payable solely from the revenues and
receipts derived from the leasing or sale by the Issuer of such
pollution control facilities,
(c) to lease or sell to others and otherwise dispose of
all or any portion of such pollution control facilities, and
(d) to issue its refunding bonds for the purpose of paying
the principal of, premium, if any, and interest on, its
outstanding revenue bonds; and
WHEREAS, in order to promote the health, safety and prosperity of the
citizens of the State of Alabama through the protection of its air and water
resources, the Issuer has previously undertaken to acquire, construct,
install, equip, and sell to the Company facilities, or portions thereof,
designed for the abatement or control of air and water pollution and sewage
treatment and disposal at the site of the Company's Xxxxxx Plant, located
within the geographical area of operation of the Issuer in Houston County,
Alabama, which facilities comprise the Project (hereinafter defined); and
WHEREAS, at the request of the Company, the Issuer has agreed to issue
$28,000,000 aggregate principal amount of its Pollution Control Revenue
Refunding Bonds, 1995 Series C (Alabama Power Company Project) and to apply
the proceeds from the sale thereof toward the redemption of certain of the
Issuer's pollution control revenue bonds previously issued to provide
financing for the Project;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained the receipt and sufficiency of which are
hereby acknowledged, the parties hereto formally covenant, agree, and bind
themselves as follows:
ARTICLE I
DEFINITIONS
The terms defined in the Indenture are used herein with the same
meanings given to such terms in the Indenture. In addition, the following
terms shall have the meanings set out below:
"Agreement" means this Fourth Supplementary Installment Sale Agreement
and any amendments and supplements hereto.
"Bonds" means the Pollution Control Revenue Refunding Bonds (Alabama
Power Company Project), 1995 Series C, issued by the issuer under the
Indenture in the aggregate principal amount of $28,000,000.
"Event of Default" means any of the occurrences enumerated in Section
5.1 of this Agreement.
"First Mortgage" means the Indenture dated as of June 1, 1942, as
heretofore and hereafter supplemented and amended, between the Company and
Chemical Bank, as Trustee, securing first mortgage bonds of the Company
heretofore or hereafter issued thereunder.
"Indenture" means the Indenture of Trust dated as of October 1, 1995,
relating to the Bonds, between the Issuer and SouthTrust Bank of Alabama,
National Association, as Trustee, pursuant to which the Bonds are authorized
to be issued, and including any indenture supplemental thereto.
"1995 Series D Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds, 1995 Series D (Alabama Power Company Project), in the
aggregate principal amount of $27,000,000, issued concurrently with the Bonds.
"1995 Series E Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds, 1995 Series E (Alabama Power Company Project) in the
aggregate principal amount of $26,500,000 issued concurrently with the Bonds.
"Original Agreement" means the Installment Sale Agreement dated as of
May 1, 1978 between the Issuer and the Company, as heretofore supplemented and
amended, excluding, however, the Supplementary Installment Sale Agreement
dated as of September 1, 1994, the Second Supplementary Installment Sale
Agreement dated as of May 1, 1995, the Third Supplementary Installment Sale
Agreement dated as of May 1, 1995, this Agreement, the Fifth Supplementary
Installment Sale Agreement dated as of October 1, 1995 and the Sixth
Supplementary Installment Sale Agreement dated as of October 1, 1995.
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"Original Indenture" means the Trust Indenture dated as of May 1, 1978
by and between the Issuer and the Trustee, as supplemented and amended by a
First Supplemental Indenture dated as of November 1, 1984, a Second
Supplemental Indenture dated as of December 1, 1984, a Third Supplemental
Indenture dated as of June 1, 1985, a Fourth Supplemental Indenture dated as
of December 1, 1985, a Fifth Supplemental Indenture dated as of December 31,
1985, a Sixth Supplemental Indenture dated as of November 1, 1986 and a
Seventh Supplemental Indenture dated as of June 1, 1993.
"Project" means the air and water pollution control and solid waste
disposal facilities financed and refinanced from the proceeds of the Series E
Bonds as described in Exhibit A to the Original Agreement.
"Series A Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series A (Alabama Power Company Xxxxxx Plant Project), dated May 1, 1978, in
the original aggregate principal amount of $1,650,000.
"Series B Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series B (Alabama Power Company Xxxxxx Plant Project), dated November 1, 1984,
in the original aggregate principal amount of $100,000,000.
"Series C Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series C (Alabama Power Company Xxxxxx Plant Project), dated December 1, 1984,
in the original aggregate principal amount of $50,000,000.
"Series D Bonds" means the Issuer's Pollution Control Revenue Refunding
Bonds, Series D (Alabama Power Company Xxxxxx Plant Project), dated June 1,
1985, in the original aggregate principal amount of $50,000,000, for the
purpose of refunding the Series C Bonds.
"Series E Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series E (Alabama Power Company Xxxxxx Plant Project), dated December 1, 1985,
issued in the original aggregate principal amount of $81,500,000.
"Series F Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series F (Alabama Power Company Xxxxxx Plant Project), dated December 31,
1985, issued in the original aggregate principal amount of $21,000,000.
"Series G Bonds" means the Issuer's Pollution Control Revenue Refunding
Bonds, Series G (Alabama Power Company Xxxxxx Plant Project), dated November
1, 1986, issued in the original principal amount of $21,000,000, for the
purpose of refunding the Series F Bonds.
"Series H Bonds" means the Issuer's Pollution Control Revenue Bonds,
Series H (Alabama Power Company Xxxxxx Plant Solid Waste Project), dated June
1, 1993, issued in the original aggregate principal amount of $9,800,000.
"Series 1994 Bonds" means the Issuer's Pollution Control Revenue
Refunding Bonds, Series 1994 (Alabama Power Company Project), dated September
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1, 1994, issued in the original aggregate principal amount of $101,650,000,
for the purpose of refunding the Series A Bonds and the Series B Bonds.
"Subordinated Security Interest" means the security interest in the
Project created in Section 3.3 hereof.
ARTICLE II
RELATIONSHIP OF AGREEMENT TO THE ORIGINAL AGREEMENT;
ISSUANCE OF THE BONDS
Section 2.1. Relationship of Agreement to the Original Agreement.
The Original Agreement was initially executed and delivered by the Issuer and
the Company in connection with the issuance and sale of the Series A Bonds and
was supplemented and amended from time to time thereafter in connection with
the issuance and sale of the Series B, C, D, E, F, G and H Bonds. Under the
terms of the Original Agreement, the Issuer agreed to finance, acquire,
construct, install and equip the Project and to sell the Project to the
Company. The Company agreed, inter alia, to assist the Issuer in the
implementation of the Project and to purchase the Project for a purchase price
payable in installments due at such times and in such amounts as would provide
funds sufficient to pay the principal of, premium, if any, and interest on all
bonds issued under the Original Indenture when due, whether at stated maturity
upon redemption or acceleration, or otherwise. The Issuer and the Company
have heretofore arranged for the redemption of the Series A Bonds, the Series
B Bonds, the Series C Bonds, the Series F Bonds and the Series D Bonds and as
a result, the installment payments currently required of the Company under the
Original Agreement relate only to the Series E, G and H Bonds. Upon the
redemption of the Series E Bonds from proceeds of the Bonds, the 1995 Series D
Bonds and the 1995 Series E Bonds, the Company will no longer be obligated to
make installment payments under the Original Agreement with respect to the
Series E Bonds but will retain its obligations with respect to the Series G
and H Bonds. By their execution and delivery of this Agreement, which is
intended to be complementary to the Original Agreement, the Issuer and the
Company ratify and confirm the sale of the Project to the Company pursuant to
the Original Agreement, agree to continue the Original Agreement in full force
and effect except for the provisions thereof requiring the Company to make
purchase price payments related to bonds of the Issuer which have been fully
paid and redeemed, and agree that from and after the date of this Agreement
the Company will make additional purchase price payments in installments due
at such times and in such amounts as will provide funds sufficient to pay the
principal of, premium, if any, interest on, and purchase price of all Bonds
issued under the Indenture. The parties acknowledge and confirm that the
Issuer's agreement to issue the Bonds and to apply the proceeds thereof to the
redemption of the Series E Bonds (thereby reducing the Company's payment
obligations under the Original Agreement) constitutes fair and adequate
consideration for the additional obligations undertaken by the Company
pursuant to this Agreement. To the extent that any statement in, or provision
of, this Agreement conflicts with the Original Agreement, the provisions of
this Agreement shall be deemed to control.
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Section 2.2. Issuance of Bonds. In order to provide funds to
refund a portion of the Series E 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, any paying agents and the Remarketing Agent under the
Indenture, such fees, charges, and reasonable expenses to be paid directly to
the Trustee, paying agents and Remarketing Agent for their respective accounts
as and when such fees, charges and reasonable expenses become due and payable,
(ii) any expenses and costs incurred or to be incurred by virtue of the
issuance of the Bonds, (iii) any expenses in connection with any redemption of
the Bonds, and (iv) any expenses in connection with the redemption of the
Series E Bonds.
The Company also agrees that, on or before the date of redemption of the
Series E Bonds, it will pay to the Series E Trustee for deposit into the Bond
Fund held by the Series E Trustee in connection with the Series E Bonds, an
amount of funds which, when added to the proceeds of the Bonds (other than
proceeds, if any, representing accrued interest), the proceeds of the 1995
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Series D Bonds and the proceeds of the 1995 Series E Bonds deposited in such
Bond Fund, plus any investment earnings thereon, and any other funds available
for such purpose, will be sufficient to permit the Series E Trustee to pay the
principal of, premium and accrued interest on the Series E Bonds upon their
redemption, which shall be on or before December 31, 1995.
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. Creation of Subordinated Security Interest. As
security for the performance by the Company of its obligations under Section
3.1 hereof, the Company hereby grants to the Issuer a security interest in the
Project and in each component thereof which has been or will be acquired
hereunder by the Company from the Issuer. It is agreed that the security
interest hereby granted is hereby made, and shall at all times be, subject to
the lien of the First Mortgage and to the lien created pursuant to the
Original Agreement. The rights of the trustee and bondholders thereunder,
shall be equal in rank to, but not superior to, any future liens created for
the benefit of any indebtedness of the Company hereafter issued under an
indenture providing that any lien for the benefit of such indebtedness shall
be equal in rank to the security interest hereby granted. Such security
interest shall remain in effect until the Company shall have satisfied its
obligations under Section 3.1 hereof at which time the Issuer shall cause the
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execution and delivery to the Company of such documents as shall be necessary
to effect or evidence the termination of such security interest.
Section 3.4. Assignment and Pledge of Payments and Rights Under
this Agreement. The Issuer shall assign and pledge to the Trustee as security
under the Indenture all rights, title and interests of the Issuer in and to
this Agreement, including the Subordinated Security Interest, and all moneys
receivable hereunder (except for payments under the second and third
paragraphs of Section 3.1 and under Sections 4.3 and 5.3 hereof). The Company
assents to such assignment and hereby agrees that, as to the Trustee, its
obligations to make such payments shall be absolute and shall not be subject
to any defense or any right of set-off, counterclaim, or recoupment arising
out of any breach by the Issuer or the Trustee of any obligation to the
Company, whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Company by the Issuer or the Trustee.
Section 3.5. Provision of Credit Agreement. On or before the date
of initial issuance of the Bonds, the Company shall enter into the Credit
Agreement for the purpose of providing the Company with a committed source of
funds, if needed, with which to perform its obligations under Section 3.1
hereof to provide any funds necessary to purchase Bonds which have been
tendered for purchase but not remarketed. The Company shall be under no
obligation to maintain the Credit Agreement in place during the term of the
Bonds, except that the Company shall not voluntarily terminate the Credit
Agreement at any time during which the Bonds are in a Commercial Paper Period.
In addition, the Company hereby agrees to notify the Trustee and the
Remarketing Agent in writing at least 20 Business Days prior to any
termination of the Credit Agreement at the request of the Company.
ARTICLE IV
SPECIAL COVENANTS
Section 4.1. No Warranty of Suitability by the Issuer. THE ISSUER
MAKES NO WARRANTY EITHER EXPRESS OR IMPLIED AS TO THE PROJECT, INCLUDING ITS
SUITABILITY FOR THE COMPANY'S PURPOSES OR NEEDS.
Section 4.2. Use of Project. The Issuer hereby covenants and
agrees that it will not take any action, other than pursuant to the exercise
of its rights under Section 5.2 of this Agreement and under the corresponding
provisions of the Original Agreement, to prevent the Company from having
possession and enjoyment of the Project during the term of this Agreement and
will, at the request of the Company and at the Company's cost, cooperate with
the Company in order that the Company may have possession and enjoyment of the
Project.
Section 4.3. Indemnity Against Claims. The Company will pay and
discharge and will indemnify and hold harmless the Issuer from (a) any lien or
charge upon payments by the Company hereunder, (b) any taxes, assessments,
impositions, and other charges upon payments by the Company to the Issuer
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hereunder, and (c) any and all liabilities, damages, costs, and expenses
arising out of or resulting from the transactions contemplated by this
Agreement and the Indenture, including the reasonable fees and expenses of
counsel. If any such lien or charge is sought to be imposed upon payments, or
any such taxes, assessments, impositions, or other charges are sought to be
imposed, or any such liability, damages, costs, and expenses are sought to be
imposed, the Issuer will give prompt notice to the Company, and the Company
shall have the sole right and duty to assume, and will assume, the defense
thereof, with full power to litigate, compromise or settle the same in its
sole discretion.
Section 4.4. Incorporation of Certain Provisions of the Original
Agreement. The provisions of the following sections of the Original Agreement
are incorporated herein by reference with the effect that the terms of such
sections shall apply with the same force and effect as if set out in full
herein: Section 6.2 (relating to inspection of the Project); Section 6.3
(relating to maintenance of the Company's corporate existence); Section 6.4
(relating to the provision of certain financial statements); Section 5.1
(relating to maintenance of the Project); Section 5.2 (relating to removal of
portions of the Project); Section 5.3 (relating to the payment of taxes and
other governmental charges); Section 5.4 (relating to insurance); Section 5.5
(relating to eminent domain); and Section 7.1 (relating to the Company's right
to assign its interest in the Original Agreement and to lease the Project).
The provisions so incorporated shall remain in force throughout the term of
this Agreement notwithstanding any earlier termination of the Original
Agreement.
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
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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.
` (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
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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
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paragraph of Section 3.1 of this Agreement, including the interest
thereon, to be immediately due and payable, whereupon the same shall
become immediately due and payable.
(b) The Issuer may take whatever action at law or in equity may
appear necessary or desirable to collect the amounts referred to in (a)
above then due and thereafter to become due, or to enforce performance
and observance of any obligation, agreement, or covenant of the Company
under this Agreement.
Any amounts collected pursuant to action taken under this Section 5.2 shall be
paid to the Trustee and applied in accordance with the provisions of the
Indenture or, if the Bonds have been fully paid (or provision for payment
thereof has been made in accordance with the provisions of the Indenture) and
the fees and expenses of the Trustee, the paying agents, and the Remarketing
Agent and all other amounts required to be paid under the Indenture shall have
been paid, to the Company.
Section 5.3. Agreement to Pay Attorneys' Fees and Expenses. If the
Company should breach any of the provisions of this Agreement and the Issuer
or the Trustee should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay to the
Issuer or the Trustee the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the Issuer or the Trustee.
Section 5.4. No Additional Waiver Implied by One Waiver. If any
provision contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of This Agreement. This Agreement shall remain
in full force and effect from the date hereof until such time as all of the
outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of the Indenture, whichever shall first occur,
and the fees and expenses of the Trustee, any paying agents and the
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,
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to P. O. Box 2554, Birmingham, Alabama 35290, Attention: Corporate Trust
Department; if to the Company, to 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, Attention: Treasurer; and if to the Remarketing Agent, to Xxxxxx
Brothers Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Municipal Note Desk. A duplicate copy of each notice, certificate
or other communication given hereunder by either the Issuer or the Company to
the other shall also be given to the Trustee. The Issuer, the Company, and
the Trustee may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates, or other communications
shall be sent.
Section 6.3. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Company, and their
respective successors and assigns.
Section 6.4. Severability. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
Section 6.5. Amounts Remaining 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 X
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.
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IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF COLUMBIA
[SEAL]
By:
Chairman of the Board of Directors
ATTEST:
Secretary
ALABAMA POWER COMPANY
By:
Vice President
ATTEST:
Secretary
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STATE OF ALABAMA
COUNTY OF
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
October, 1995.
Notary Public
My Commission Expires:
[SEAL]
STATE OF ALABAMA
COUNTY OF
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
October, 1995.
Notary Public
My Commission Expires:
[SEAL]
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