Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 140 727K
Business-Combination Transaction
2: EX-1 Underwriting Agreement 16 87K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 28 97K
4: EX-3.2 Articles of Incorporation/Organization or By-Laws 13 53K
5: EX-4.1 Instrument Defining the Rights of Security Holders 102 365K
6: EX-4.2 Instrument Defining the Rights of Security Holders 29 113K
7: EX-4.3 Instrument Defining the Rights of Security Holders 147± 648K
8: EX-4.4 Instrument Defining the Rights of Security Holders 295± 1.28M
9: EX-4.6 Instrument Defining the Rights of Security Holders 2 15K
10: EX-5 Opinion re: Legality 2 14K
19: EX-10.09 Material Contract 2 17K
11: EX-10.1 Material Contract 89± 293K
20: EX-10.10 Material Contract 67± 268K
21: EX-10.11 Material Contract 8 63K
23: EX-10.13 Material Contract 8± 39K
24: EX-10.14 Material Contract 4± 25K
25: EX-10.15 Material Contract 8± 39K
26: EX-10.16 Material Contract 6± 27K
12: EX-10.2 Material Contract 55± 200K
13: EX-10.3 Material Contract 116± 276K
14: EX-10.4 Material Contract 67± 228K
15: EX-10.5 Material Contract 13± 70K
16: EX-10.6 Material Contract 63± 261K
17: EX-10.7 Material Contract 11± 49K
18: EX-10.8 Material Contract 8± 38K
22: EX-11.12 Statement re: Computation of Earnings Per Share 58 225K
27: EX-12 Statement re: Computation of Ratios 1 11K
28: EX-21 Subsidiaries of the Registrant 1 11K
29: EX-23.2 Consent of Experts or Counsel 1 11K
30: EX-25 Statement re: Eligibility of Trustee 26 100K
31: EX-99.1 Miscellaneous Exhibit 12 52K
32: EX-99.2 Miscellaneous Exhibit 3 16K
33: EX-99.3 Miscellaneous Exhibit 2 13K
34: EX-99.4 Miscellaneous Exhibit 2 14K
35: EX-99.5 Miscellaneous Exhibit 3 13K
Exhibit 10.10
LOAN AGREEMENT
BY AND AMONG
INDIANAPOLIS POWER & LIGHT COMPANY,
ABN AMRO BANK N.V.
UNION PLANTERS BANK NATIONAL ASSOCIATION
AND
OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
AND
ABN AMRO BANK N.V., AS ADMINISTRATIVE AGENT
$30,000,000.00
Dated November 1, 2000
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING AND OTHER TERMS...................................1
Section 1.1. Certain Defined Terms......................................1
Section 1.2. Accounting Terms...........................................4
Section 1.3. Other Terms................................................5
ARTICLE II
AMOUNT AND TERMS OF THE LOANS................................................5
Section 2.1. Advances...................................................5
(A) Amount.....................................................5
(B) Notice and Manner of Borrowing.............................5
(C) Interest...................................................6
(D) Payments...................................................6
(E) Maturity...................................................7
(F) Extension..................................................7
(G) The Agent..................................................7
(H) Optional Reduction of Commitment..........................10
Section 2.2. Notations.................................................10
Section 2.3. Computation of Interest...................................11
Section 2.4. Time of Payments and Prepayments in
Immediately Available Funds and Setoff................11
(A) Time......................................................11
(B) Setoff....................................................11
(C) Unconditional Obligations and No Deductions...............12
Section 2.5. Payment on Non-Business Days..............................12
Section 2.6. Use of Proceeds...........................................12
Section 2.7. Loan Advancements and Payments............................12
Section 2.8. Facility Fee..............................................12
Section 2.9. Reimbursement of Costs....................................13
Section 2.10. Conversion................................................13
Section 2.11. Increased Costs...........................................13
Section 2.12. Illegality................................................14
ARTICLE III
CONDITIONS OF LENDING.......................................................14
Section 3.1. Conditions Precedent to all Advances......................14
Section 3.2. Necessary Documents.......................................14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..............................................15
Section 4.1. Representations and Warranties of Borrower................15
(A) Organization and Existence................................15
(B) Authorization and Absence of Defaults.....................15
(C) Acquisition of Consents...................................16
(D) Validity and Enforceability...............................16
(E) Financial Information.....................................16
(F) No Litigation.............................................16
(G) Regulation U..............................................16
(H) Absence of Adverse Agreements.............................17
(I) Taxes.....................................................17
(J) Ownership of Properties...................................17
(K) Accuracy of Representations and Warranties................17
(L) No Investment Company.....................................17
(M) Solvency..................................................17
(N) Licenses, Registrations, and Compliance with Laws.........18
(O) Principal Place of Business; Books and Records............18
(P) Title to Assets and Properties............................18
(Q) Material Adverse Change...................................18
ARTICLE V
COVENANTS OF BORROWER.......................................................18
Section 5.1. Affirmative Covenants of Borrower
Other Than Reporting Requirements.....................18
(A) Payment of Taxes..........................................19
(B) Preservation of Existence.................................19
(C) Compliance with Laws......................................19
(D) Visitation Rights.........................................19
(E) Keening of Records and Books of Account...................19
(F) Maintenance of Properties.................................20
(G) Other Documents...........................................20
(H) Environmental Liability...................................20
(I) Additional Assurances.....................................20
(J) Purposes..................................................21
(K) ERISA Compliance..........................................21
Section 5.2. Negative Covenants of Borrower............................21
(A) Liens.....................................................21
(B) Assumptions or Guaranties of Indebtedness.................22
(C) Dissolution...............................................23
(D) Sale of Assets............................................23
(E) Change in Nature of Business..............................23
(F) Sale and Leaseback........................................23
(G) Sale of Accounts..........................................23
(H) Indebtedness..............................................23
(I) Other Agreements..........................................24
(J) Payment or Prepayment of Other Loans......................24
(K) Change of Fiscal Year.....................................24
(L) Subordination of Claims...................................24
(M) Dividends.................................................24
(N) Capital Expenditures......................................24
(O) Financial Covenants.......................................25
Section 5.3. Reporting Requirements....................................25
ARTICLE VI
EVENTS OF DEFAULT...........................................................27
Section 6.1. Events of Default.........................................27
ARTICLE VII
REMEDIES OF BANK............................................................28
ARTICLE VIII
MISCELLANEOUS...............................................................29
Section 8.1. Consent to Jurisdiction and Service of Process............29
Section 8.2. Rights and Remedies Cumulative............................30
Section 8.3. Delay or Omission Not Waiver..............................30
Section 8.4. Amendments................................................30
Section 8.5. Addresses for Notices.....................................30
Section 8.6. Costs, Expenses, and Taxes................................31
Section 8.7. Participations............................................32
Section 8.8. Binding Effect; Assignment................................32
Section 8.9. Actual Knowledge..........................................33
Section 8.10. Governing Law.............................................33
Section 8.11. Severability of Provisions................................33
Section 8.12. Headings..................................................33
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is effective as of November 1, 2000, by
and among INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana corporation with its
principal place of business at One Monument Circle, Indianapolis, Indiana 46204
("Borrower"), each of the financial institutions from time to time party hereto
(each a "Bank" and collectively, the "Banks"), and ABN AMRO Bank N.V. in its
capacity as administrative agent for the Banks.
W I T N E S S E T H T H A T:
WHEREAS, the Borrower desires to obtain the several commitments of the
Banks to make available a revolving credit for loans as described herein; and
WHEREAS, the Banks are willing to extend such several commitments subject
to all of the terms and conditions hereof and on the basis of the
representations and warranties hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Banks, Agent and Borrower agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING AND OTHER TERMS
Section 1.1. Certain Defined Terms. As used in this Agreement, the
following words, terms and/or phrases shall have the following meanings and such
meanings shall be applicable to both the singular and plural forms of the terms
defined:
"ABN AMRO" means ABN AMRO Bank N.V.
"ABN AMRO Note" means the Revolving Line of Credit Promissory Note
(Unsecured) in the amount of Fifteen Million and No/100 Dollars ($15,000,000.00)
dated effective as of November 1, 2000 executed by Borrower in favor of ABN AMRO
in its capacity as a Bank substantially in the form (with appropriate
insertions) of Exhibit A attached to this Agreement, and any replacement or
substitute promissory note issued by Borrower to ABN AMRO pursuant to this
Agreement.
"Agent" means ABN AMRO in its capacity as administrative agent for the
Banks and not in its individual capacity as a Bank, including any successors or
assigns.
"Aggregate Commitment" means Thirty Million and No/100 Dollars
($30,000,000.00), representing the aggregate of the Commitments of the Banks.
"Agreement" means this Loan Agreement, as from time to time amended or
restated in accordance with the terms hereof.
"A.M." means a time from and including 12:00 midnight on any Business Day
to but not including 12:00 noon on such Business Day using Chicago, Illinois
time.
"Bank" or "Banks" has the meaning assigned in the first paragraph of this
Agreement, including respective successors and assigns of each Bank.
"Base Rate" means the fluctuating rate of interest which is publicly
announced from time to time by the Agent at its principal place of business as
being its "Prime Rate" or "Base Rate" thereafter in effect, with each change in
the Base Rate automatically, immediately and without notice changing the
fluctuating interest rate thereafter applicable hereunder, it being agreed that
the Base Rate is not necessarily the lowest rate of interest then available on
fluctuating rate loans.
"Borrower" has the meaning assigned in the first paragraph of this
Agreement.
"Business Day" means any day which is not (a) a Saturday, Sunday or legal
holiday on which banking institutions in the State of Indiana, State of Illinois
or the city in which the office of Agent is located is authorized to remain
closed, or (b) a day on which the New York Stock Exchange is closed
"Closing Date" means November 1, 2000.
"Commitment" means for each Bank, its commitment to make the Loan as set
forth in Article II hereof up to the maximum outstanding amount set forth
therein and as such amount may be reduced from time to time in accordance with
the terms of this Agreement.
"Default" means an event or condition which with the giving of notice or
lapse of time or both would become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Events of Default" has the meaning assigned in Section 6.1 of this
Agreement.
"Exhibit" means, when followed by a letter, the exhibit attached to this
Agreement bearing that letter and by such reference fully incorporated in this
Agreement.
"FDIC Assessment Rate" means the rate (rounded upward, if necessary, to the
nearest 1/100 of one percent (.01%)) equal to the rate at which premiums for
deposit insurance are then charged by the Federal Deposit Insurance Corporation
(or any successor) for insuring time deposits at offices of Bank.
"Federal Funds Effective Rate" means, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by Bank from three (3)
Federal funds brokers of recognized standing selected by it. If for any reason
Bank shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate,
for any reason, including the inability or failure of Bank to obtain sufficient
quotations in accordance with the terms thereof, the Floating Rate shall be
determined without regard to the Federal Funds Effective Rate, until the
circumstances giving rise to such inability no longer exist.
"Financing Documents" means, collectively, this Agreement, the Notes, and
each other agreement, instrument or document now or hereafter executed and
delivered in connection herewith or therewith.
"Fixed Rate" means the rate per annum as quoted by Agent (with the consent
of each Bank) at the time of a Loan which rate shall be fixed up to one hundred
eighty (180) days.
"Fixed Rate Loan" means a Loan which bears interest at the Fixed Rate as
quoted by the Agent (with the consent of each Bank).
"Floating Rate" means the rate per annum (rounded upwards, if necessary, to
the next 1/16 of one percent (.0625%)) equal to the greater of (a) the Base Rate
in effect on such day, and (b) the Federal Funds Effective Rate in effect on
such day plus one-quarter (1/4) of one percent (1%) per annum.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America.
"Indebtedness" means all obligations and liabilities of Borrower to any
Person (including without limitation all debts, claims and indebtedness) whether
primary, secondary, direct, contingent, fixed or payable, heretofore, now and/or
from time to time hereafter owing, due or payable, however evidenced, created,
incurred, acquired or owing and however arising, whether under written or oral
agreement, operation of law, or otherwise. Indebtedness includes, without
limiting the generality of the foregoing: (a) obligations or liabilities of any
Person that are secured by any lien, claim, encumbrance, or security interest
upon property owned by Borrower even though Borrower has not assumed or become
liable for the payment therefor; and (b) obligations or liabilities created or
arising under any lease of real or personal property, or conditional sale or
other title retention agreement with respect to property used and/or acquired by
Borrower, even though the rights and remedies of the lessor, seller and/or
lender thereunder are limited to repossession of such property.
"Interest Period" means with respect to any Loan, the period (not exceeding
180 days) as quoted by the Agent (with the consent of each Bank) mutually agreed
to by the Agent, Banks and Borrower commencing on the date of the Loan.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrances, liens (statutory or other) or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including without limitation any conditional sale or other title retention
agreement) having substantially the same economic effect as any of the foregoing
and the filing of any financing statement under the applicable Uniform
Commercial Code or comparable law of any jurisdiction in respect of any of the
foregoing.
"Loans" shall have the meaning assigned in Section 2.1(A) of this
Agreement.
"Loan Request" shall have the meaning set forth in Section 2.7 of this
Agreement.
"Notes" means collectively the ABN AMRO Note, the Union Planters Note and
all other promissory notes of Borrower from time to time issued to Banks under
the terms of this Agreement.
"P.M." means a time from and including 12:00 noon on any Business Day to
the end of such Business Day using Chicago, Illinois time.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, limited liability
company, corporation, institution, entity, party or government (whether
national, federal, state, county, city, municipal or otherwise, including
without limitation, any instrumentality, division, agency, body or department
thereof).
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulatory Change" means (a) any change after the Closing Date in United
States federal, state or foreign laws, regulations, treaties or directives
(including Regulation D of the Board of Governors of the Federal Reserve
System), (b) any change in the interpretation of the foregoing by any
governmental authority charged with the administration or interpretation
thereof, or (c) any change in the manner in which existing guidelines of any
federal or state governmental authority are enforced.
"Section" means, when followed by a number, the section or subsection of
this Agreement bearing that number.
"Termination Date" means October 31, 2001, as the same may be extended
pursuant to the terms hereof or any earlier date on which the Aggregate
Commitment is reduced to zero or otherwise terminated pursuant to the terms
hereof.
"Union Planters" means Union Planters Bank, National Association
"Union Planters Note" means the Revolving Line of Credit Promissory Note
(Unsecured) in the amount of Fifteen Million and no/100ths Dollars
($15,000,000.00) dated effective as of November 1, 2000 executed by Borrower in
favor of Union Planters substantially in the form (with appropriate insertions)
of Exhibit A attached to this Agreement, and any replacement or substitute
promissory note issued by Borrower to Union Planters pursuant to this Agreement.
Section 1.2. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, calculations of
amounts for the purposes of calculating any financial covenants or ratios
hereunder shall be made in accordance with GAAP, and all financial data
submitted pursuant to this Agreement shall be prepared in accordance with GAAP.
Section 1.3. Other Terms. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
Section 2.1. Loans.
(A) Amount. From and including the date hereof and prior to the
Termination Date, each Bank agrees, subject to the terms and conditions of
this Agreement, as amended from time to time, including but not limited to
the conditions precedent contained in Section 3.1 hereof, and provided that
a Default or an Event of Default is not then in existence or would not then
be created thereby, to make loans (singly and collectively herein referred
to as a "Loan" and the "Loans") to Borrower, from time to time, in amounts
not to exceed in the aggregate at any one time outstanding, the amount of
the Aggregate Commitment. The Commitments of the Banks shall be several and
not joint. On the Closing Date the Commitments of ABN AMRO and Union
Planters, the sole Banks on the Closing Date, are each Fifteen Million
Dollars ($15,000,000.00). Subject to the terms of this Agreement, Borrower
may borrow, repay and reborrow under the Notes at any time prior to the
Termination Date. In accordance with the terms of this Agreement, at
Borrower's option, borrowings may be either (i) Floating Rate Loans in
principal amounts of One Million Dollars ($1,000,000.00) or integral
multiples of $100,000, or (ii) Fixed Rate Loans in principal amounts of One
Million Dollars ($1,000,000.00) or integral multiples of $100,000; provided
however, that the Borrower understands and agrees that the Banks have no
obligation to quote Fixed Rates or to make Fixed Rate Loans available to
the Borrower.
(B) Notice and Manner of Borrowing.
(i) Borrower shall give Agent written, telephonic or facsimile
notice, prior to 12:00 noon, Chicago, Illinois time, on the
date of borrowing for each Loan, specifying the amount, the
date, and the type (Floating Rate or Fixed Rate) of the
Loan, and with respect to Fixed Rate Loans, the Interest
Period requested therefor.
(ii) Agent shall promptly notify each Bank upon receipt of Loan
Request from Borrower specifying the portion of such Loan to
be funded by each Bank, the interest rate, the Interest
Period and the date of borrowing. Subject to each Bank's
approval of the Interest Period and Fixed Rate, in the case
of each Fixed Rate, each Loan or renewal thereof shall be
made on a Pro Rata basis by Banks and each Bank's portion of
each Loan shall be determined by application of (i) the
percentage each Bank's Commitment comprises of the Aggregate
Commitment to (ii) the total amount of the Loan. Provided
that each Bank is given the notice required in this Section
2.1(B)(iii) by 12:00 p.m. (Noon) Chicago, Illinois time,
each Bank agrees that it will make the funds which it is to
advance hereunder available to Agent not later than 2:00
p.m. Chicago, Illinois time on the date such Loan is to be
made. Agent will thereupon advance to Borrower the amount so
received from Banks unless Agent shall determine that any
condition precedent applicable to the Loan shall not be
fulfilled as of the date of such Loan. Subject to the
provisions of Article III hereof, the proceeds of each Loan
shall be made available to the Borrower at the principal
office of the Agent in Chicago, Illinois in immediately
available funds upon receipt by Agent from each Bank of its
share of such Loan. All notices (including requests for
Loans) sent by Borrower to Agent and received by Agent after
12:00 p.m. (Noon) Chicago, Illinois time (or such other time
as is specified in any Section hereof) on a Business Day
shall be deemed received on the next succeeding Business
Day.
(iii)Absent contrary notice from Borrower by 12:00 noon,
Chicago, Illinois time, one Business Day prior to the last
day of the Interest Period for each Fixed Rate Loan,
Borrower shall, at Agent's option, be deemed to have given
Agent notice at such time pursuant to Section 2.1(B) hereof
to the effect that Borrower requests that the Banks make the
Loan to Borrower on such date at the Floating Rate in an
aggregate principal amount equal to the aggregate principal
amount of the Loan becoming due and payable on such date.
(C) Interest. Interest shall accrue on the Loans subject to and in
accordance with the terms and conditions of this Agreement and the Notes as
follows:
(i) Floating Rate Loans - At the Floating Rate; or
(ii) Fixed Rate Loans - At the Fixed Rate as quoted by the Banks;
provided, however, that with respect to any Loan or portion thereof which
is not paid when due, such Loan shall accrue interest at a rate per annum
equal to the lesser of (i) 4% plus the Base Rate or (ii) the maximum rate
of interest permitted by applicable law.
(D) Payments. Payments of interest on the Loan shall be due and
payable commencing on December 1, 2000 and continuing thereafter on the
first day of each subsequent month and on the Termination Date. In the
discretion of either Borrower or Agent, Borrower may pay accrued but unpaid
interest on the last day of the Interest Period applicable to any Loan.
The principal amount of all Floating Rate Loans shall be due and
payable on the Termination Date, subject to the extension provisions set
forth in Section 2.1(F) hereof. The principal amount of each Fixed Rate
Loan shall be due and payable on the last day of the Interest Period
applicable thereto.
Floating Rate Loans may be prepaid in full or in part (if in part, in
the amount of $1,000,000 or an integral multiple of $100,000) at any time.
Fixed Rate Loans may be prepaid in full or in part (if in part, in the
amount of $1,000,000 or an integral multiple of $100,000) as follows:
(i) On the last day of an Interest Period for the Loan, upon one
(1) prior Business Day's notice to Agent ; or
(ii) On any other Business Day, upon one (1) prior Business Day's
notice to Agent, and provided Borrower shall pay to each
Bank, on its demand, as compensation for a Bank's cost of
reemploying funds acquired by such Bank to fund the Loan, an
amount determined by such Bank in its sole discretion, equal
to the excess, if any, of (a) the additional interest which,
but for the prepayment, would have been payable on the
prepaid Loan from the date of prepayment until the last day
of the then current Interest Period applicable to the Loan,
over (b) the interest amount, as reasonably determined by
such Bank, that such Bank would have bid for deposits of
alike amount for a period from the date of prepayment until
the last day of the then current Interest Period applicable
to that Loan.
(E) Final Maturity. Subject to the extension provisions of Section
2.1(F) hereof, if not sooner paid or accelerated pursuant to the terms of
the Notes or this Agreement, the balance of the unpaid principal and all
accrued and unpaid interest of the Loans and all other amounts owing
hereunder shall be due and payable on the Termination Date.
(F) Extension. This Agreement will be reviewed by Banks on or before
each date occurring thirty (30) days prior to the Termination Date then in
effect for purposes of considering extending the maturity of this Agreement
and the Loans by an additional one (1) year period. Any such extension
shall be at the Banks' sole discretion and shall be documented in a writing
signed by the Agent, the Banks and the Borrower, which writing shall set
forth the date to which the Agreement is being extended. This Agreement and
the Loans will not be extended, and shall not be deemed extended, absent a
writing described in the preceding sentence signed by such parties.
(G) The Agent. Borrower acknowledges the existence of limitations in
Agent's authority but shall be entitled to rely upon the authority of the
Agent as conferred by this Section 2.1(G) and otherwise specified in this
Agreement.
(i) Appointment, Powers and Immunities. Each Bank hereby
appoints and authorizes the Agent to act as its
representative hereunder and under the Notes to receive
payments made in respect of the Notes with such powers as
are specifically delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto. The Agent shall have no duties or
responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a
trustee or fiduciary for any Bank. The Agent shall not be
responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement,
or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other
document referred to or provided for herein or for any
failure by Borrower to perform any of its obligations
hereunder. The Agent may employ agents and attorneys and
shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence
or misconduct of any such agents or attorneys selected by it
with reasonable care. Neither the Agent nor any of its
directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by
it or them hereunder or in connection herewith, except for
its or their own gross negligence or willful misconduct.
(ii) Reliance by Agent. The Agent shall be entitled to rely upon
any certification, notice or other communication (including
any thereof by telephone, telex, telegram, cable or
telecopy) received by it in connection with this Agreement
believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper person or
persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Agent.
As to any matters not expressly provided for by this
Agreement, Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in
accordance with instructions signed by the Banks, and such
institutions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks.
(iii)Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default (other than the non-payment
of principal of or interest on the Notes or any other amount
payable hereunder) unless Agent has received written notice
or other written documentation from a Bank or from Borrower
indicating that a Default has occurred. In the event that
Agent received such a notice of the occurrence of a Default,
Agent shall give prompt notice thereof to the Banks (and
shall give each Bank prompt notice of each such
non-payment). The Agent shall (subject to subsection
(G)(vii) hereof) take such action with respect to such
Default as shall be directed by the Banks.
(iv) Rights as a Bank. With respect to the Notes, Agent in its
capacity as a Bank hereunder shall have the same rights and
powers hereunder as any other Bank and may exercise the same
as though it were not acting as Agent, and the term "Bank"
or "Banks" shall, unless the context otherwise indicates,
include Agent in its individual capacity. Agent and its
affiliates may (without having to account therefor to any
Bank) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with
Borrower as if it were not acting as Agent, and Agent may
accept fees and other consideration from Borrower for
services in connection with this Agreement or otherwise
without having to account for the same to the Banks except
as specified herein.
(v) Indemnification. The Banks agree to indemnify Agent ratably
in accordance with their respective shares of the aggregate
principal amount of the Loans for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or
asserted against Agent in any way relating to or arising out
of this Agreement or any other documents contemplated hereby
or the enforcement of any of the terms hereof or of any such
other documents, provided that no Bank shall be liable for
any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of Agent.
(vi) Non-Reliance on Agent and other Banks. Each Bank agrees that
it has, independently and without reliance on Agent or any
other Bank, and based on such documents and information as
it has deemed appropriate, made its own credit analysis of
Borrower and its decision to enter into this Agreement and
that it will, independently and without reliance upon Agent
or any other Bank, and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or
not taking action under this Agreement. Agent shall not be
required to keep itself informed as to the performance or
observance by Borrower of this Agreement or any other
document referred to or provided for herein or to inspect
the properties or books of Borrower unless an inspection of
the properties or books is required in writing by the Banks.
(vii)Failure to Act. Except for action expressly required of
Agent hereunder, Agent shall in all cases be fully justified
in failing or refusing to act hereunder unless it shall be
indemnified to its satisfaction by the Banks against any and
all liability and expenses which may be incurred by it by
reason of taking or continuing to take any such action.
(viii) Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by giving notice
thereof to the Banks and Borrower. Upon such resignation,
the Banks shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the
Banks or such successor shall not have accepted such
appointment within thirty (30) days after the retiring
Agent's giving notice of resignation or after the removal of
the Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a bank
which has an office in the United States and having a
combined capital and surplus of at least One Hundred Million
and No/100 Dollars ($100,000,000.00). Upon the acceptance of
any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as Agent
hereunder. After retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section (G) shall
continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as
Agent.
(ix) Amendment of Agreement. The Agent agrees for the benefit of
the Banks that it shall not execute any amendment,
modification, waiver, or extension to this Agreement without
the consent of the Banks required pursuant to Section 8.4
hereof.
(H) Optional Reduction of Commitment.
(i) The Borrower may, from time to time, permanently reduce the
Aggregate Commitment in whole, or in part ratably among the
Banks, in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of the minimum
amount (unless the Aggregate Commitment is reduced in
whole), upon at least one (1) Business Day's written notice
to the Agent, which notice shall specify the amount of any
such reduction; provided, however, that the amount of the
Aggregate Commitment may not be reduced below the aggregate
principal amount of the outstanding Loans.
(ii) All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the
Banks to make Loans hereunder.
Section 2.2. Notations. At the time of the making of any Loan evidenced by
the Notes and each payment or prepayment of principal, interest, fees and other
sums due in connection with this Agreement and/or the Notes, a Bank may enter
upon its records an appropriate notation evidencing such Loan and/or such
payment or prepayment. No failure to make any such notation shall affect
Borrower's unconditional obligations to repay the Loans and all interest, fees
and other sums due in connection with this Agreement and/or the Notes in full,
nor shall any such failure, standing alone, constitute grounds for disproving a
payment by Borrower. However, in the absence of manifest error, such notations
and a Bank's records containing such notations shall constitute presumptive
evidence of the facts stated therein, including without limitation, the
outstanding amount of the Loan and all amounts due and owing to a Bank at any
time. Any such notations and a Bank's records containing such notations may be
introduced in evidence in any judicial or administrative proceeding relating to
this Agreement, the Loans or the Notes.
Section 2.3. Computation of Interest. Interest due under this Agreement and
under the Notes shall be computed for the actual number of days elapsed on the
basis of a 360 day year of twelve 30 day months.
Section 2.4. Time of Payments and Prepayments in Immediately Available
Funds and Setoff.
(A) Time. All payments and prepayments of principal, fees, interest
and any other amounts owed from time to time under this Agreement and/or
under the Notes shall be made to Agent at the address referred to in
Section 8.5, or such other address as Agent may notify Borrower, in Dollars
and in immediately available funds prior to 2:30 P.M. on the Business Day
that such payment is due. Borrower hereby irrevocably authorizes Agent, if
and to the extent payment of any installment of principal, interest and/or
fees hereunder and/or under the Notes is not made when due, to charge
against any of Borrower's accounts with a Bank an amount equal to the
amount thereof not paid when due. Any such payment or prepayment which is
received by Agent in Dollars and in immediately available funds after 2:30
P.M. on a Business Day shall be deemed received for all purposes of this
Agreement on the next succeeding Business Day except that solely for the
purpose of determining whether a Default has occurred under Section 6.1,
any such payment or prepayment if received by Agent prior to the close of
Agent's business on a Business Day shall be deemed received on such
Business Day.
(B) Setoff. Upon the occurrence of any Event of Default (including any
applicable cure period) and during the continuance of any Event of Default,
Agent or any Bank is hereby authorized at any time and from time to time,
without notice to Borrower (any such notice being expressly waived by
Borrower), to setoff and apply any and all deposits (general or special,
time or demand, provision or final) at any time held and other indebtedness
at any time owing by Agent or any Bank to or for the credit or the account
of Borrower against any and all of the obligations of Borrower now or
hereafter existing under this Agreement or the Notes irrespective of
whether or not any Bank shall have made any demand under this Agreement or
the Notes and although such obligations may be unmatured. The Agent and
Banks agree to promptly notify Borrower after any such setoff and
application; provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of Agent and Banks
under this Section 2.4(B) are in addition to all other rights and remedies
(including, without limitation, other rights of setoff) which Agent and
Banks may have.
(C) Unconditional Obligations and No Deductions. Borrower's obligation
to make all payments provided for in this Agreement and/or the Notes shall
be unconditional. Each such payment shall be made without deduction for any
claim, defense or offset of any type, including without limitation any
withholdings and other deductions on account of income or other taxes and
regardless of whether any claims, defenses or offsets of any type exist.
Section 2.5. Payment on Non-Business Days. Whenever any payment to be made
hereunder or under the Notes shall be stated to be due on a day other than a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
payment of fees, if any, and interest under this Agreement and under the Notes.
Section 2.6. Use of Proceeds. Borrower shall use the proceeds of the Loans
for Borrower's working capital needs, to support Borrower's commercial paper
program and to provide for Borrower's temporary liquidity needs (including
daylight overdrafts).
Section 2.7. Loan Advancements and Payments. Subject to the terms of this
Agreement Banks shall make Loans as requested by Borrower and in accordance with
the following notice procedures. Borrower shall give Agent a telephonic request
and notice for any Loan (the "Loan Request") in accordance with the terms of
Section 2.1(B) and shall specify the date, the type of Loan, the Interest Period
requested therefor and amount of such Loan and shall otherwise be in such form
as Agent may require from time to time.
Section 2.8. Facility Fee. Borrower shall pay to Agent for the ratable
account of the Banks a facility fee in a sum equal to the following:
S&P Rating Moody's Rating Facility Fee Rate
---------- -------------- -----------------
Greater than Greater than Basis Points of
or Equal to: or Equal to: Aggregate Commitment
Level I A A2 10
Level II A- A3 12.5
Level III BBB+ Baa1 15
Level IV BBB Baa2 20
Level V BBB- Baa3 25
("Facility Fee") as of the date of this Agreement and shall pay such Facility
Fee quarterly in arrears commencing December 31, 2000 and on the last day of
each calendar quarter thereafter while the Loan is outstanding, computed for the
number of actual days elapsed on a 360 day year, as the case may be, with each
Bank receiving a pro-rata portion of such fee based upon the amount of its
portion of the Commitment. For purposes of this Section 2.8, "Basis Point" means
one-one hundredth of one percent (.01%). In the event that the S&P Rating and
Moody's Rating are not at the same Level, the applicable Facility Fee Rate shall
be determined on the basis of the higher of the two ratings unless there is more
than one Level differential between such ratings in which event the applicable
Facility Fee Rate shall be determined using the average of such Facility Fee
Rates.
Section 2.9. Reimbursement of Costs. Borrower agrees to reimburse Agent for
all costs (including, but not limited to, reasonable legal fees, accountants'
fees, recording fees, filing fees, title searches, lien searches, title
insurance and credit investigations) incurred by Agent in connection with the
Loans made hereunder.
Section 2.10. Conversion. Provided that no Event of Default shall have
occurred, Borrower may, upon three Business Days' notice to Agent and prior to
12:00 noon, Chicago time, on such date, convert all or part of any Loan from one
interest rate option to another as follows:
(A) from a Floating Rate to a Fixed Rate at any time; or
(B) from a Fixed Rate to a Floating Rate on the last day of an
Interest Period;
Any such conversion hereunder shall constitute a prepayment of the particular
Loan and shall be subject to the prepayment penalty provided for in Section
2.1(D) hereof. A notice converting an Loan to a Fixed Rate shall specify the
Interest Period.
Section 2.11. Increased Costs. With respect to any outstanding Indebtedness
of Borrower, if any Regulatory Change shall:
(A) subject any Bank to any tax with respect to that Loan (other than
tax on or measured by such Bank's net income); or
(B) change the basis of taxation to any Bank (other than a change of
tax on or measured by such Bank's net income) of payments of principal or
interest in respect of that Loan; or
(C) impose or modify any reserve, special deposit, deposit insurance
or similar requirement relating to any assets of, deposits with, or loans
by any Bank used to fund that Loan; or
(D) impose any other similar obligation on any Bank with respect to
that Loan;
and the result is to increase the cost to any Bank of making or maintaining that
Loan or to reduce the amount receivable by such Bank with respect to that Loan,
in either event by an amount which such Bank reasonably deems material, then,
and in any such case:
(E) such Bank shall promptly notify Borrower of the happening of the
above-described event; and
(F) Borrower shall pay to such Bank on demand as additional interest
such amount as will compensate such Bank for the additional cost or
reduction, calculated from the date of notification by such Bank, and may,
at its option, within seven Business Days after receipt of such
notification, (1) notify Agent and Bank in accordance with Section 2.1(D)
of its intent to prepay the Loan, and thereafter prepay the Loan in
accordance with Section 2.1(D) with such amount as will compensate such
Bank for the additional cost or reduction calculated from the date of
notification by, such Bank, to and including the date of prepayment; or (2)
notify Agent in accordance with Section 2.10 of its intent to convert the
affected Loan to another interest rate option unaffected by the Regulatory
Change.
A certificate as to the increased cost or reduced amount resulting to Bank from
any Regulatory Change as described above shall be submitted by such Bank to
Agent and Borrower along with its notification under subsection (E) above. In
the absence of manifest error, the certificate shall be conclusive as to the
amount shown thereon if determined on a reasonable basis.
Section 2.12. Illegality. In the event that it becomes unlawful for any
Bank to (a) honor its obligations to make any Fixed Rate Loan, or (b) maintain
any Fixed Rate Loan, such Bank shall promptly notify the Agent and Borrower
thereof and such Bank's obligation to make the affected type of Loan and to
convert other types of Loans into that type of Loan shall be suspended until
such time as such Bank may again legally make and maintain the affected type of
Loan, and Borrower shall, on the last day of the then current Interest Period
for that Loan (or on such earlier date as such Bank may reasonably specify to
Borrower, but in no event earlier than seven Business Days after receipt of such
Bank's notification), either notify such Bank and Agent and thereafter prepay
the Loan in accordance with Section 2.1(D), or notify such Bank and Agent and
thereafter convert the Loan into another type or types of Loan(s) in accordance
with Section 2.10.
ARTICLE III
CONDITIONS OF LENDING
Section 3.1. Conditions Precedent to all Loans. The obligation of Banks to
make any Loan is subject to performance by Borrower of all of its obligations
under this Agreement and to the satisfaction of the conditions precedent that
all legal matters incidental to the Loan shall be satisfactory to counsel for
Agent and that the following conditions shall be met:
(A) Borrower's compliance, from the date hereof, with the affirmative
covenants contained in Section 5.1 of this Agreement;
(B) the representations and warranties of the Borrower contained in
Section 4.1 of this Agreement are true and accurate; and
(C) that no Default or Event of Default is then in existence or would
then be created thereby.
Section 3.2. Necessary Documents. The obligation of Agent to make the
initial Loan is subject to the receipt by Agent on or before the Closing Date of
all of the following, each dated the Closing Date or another date prior to the
Closing Date acceptable to Agent and each to be in the form and substance
approved by Agent on the date on which this Agreement is executed and delivered
by Borrower and Agent:
(A) the Notes and any other documents required herein;
(B) a Certificate of Existence from the Secretary of State of Indiana,
dated not more than five (5) days before the Closing Date, stating that
Borrower is duly organized and existing under the laws of the State of
Indiana;
(C) payment to Agent of the fees specified in this Agreement as being
payable on the Closing Date;
(D) such other information about Borrower and/or its assets, business
and/or financial condition as Agent or Banks may reasonably request;
(E) evidence required by Agent or Banks to establish that Borrower has
the authority to enter into this Agreement and that all Financing Documents
executed in connection with the Loans will be valid and binding obligations
of the Borrower, fully enforceable with their respective terms under
applicable law. Such evidence shall include, without limitation,
resolutions of the board of directors of Borrower, a certificate of the
Secretary of the Borrower certifying the same;
(F) certified copies of Borrower's Articles of Incorporation, By-Laws
and all amendments thereto;
(G) an opinion of Borrower's counsel acceptable to the banks;
(H) a written certificate of the Secretary of the Borrower as to the
names and signatures of the officers of Borrower authorized to sign this
Agreement and the Notes and other documents to be executed and delivered
pursuant hereto; and
(I) copies of any necessary regulatory approvals of Borrower.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Borrower. Borrower
represents and warrants to Agent and Banks that, after giving effect to the
Loans and the application of the proceeds thereof (which representations and
warranties shall survive the making of the Loans and the termination of this
Agreement) as follows:
(A) Organization and Existence. Borrower is a corporation, duly
organized and validly existing under the laws of the state of its
incorporation or organization and is duly qualified to do business in all
jurisdictions in which such qualification is required, except where failure
to so qualify would not have a material adverse effect on the financial
condition or business of Borrower and has all requisite power and authority
to conduct its business, to own its properties and to execute and deliver,
and to perform all of its obligations under the Financing Documents.
(B) Authorization and Absence of Defaults. The execution, delivery and
performance by Borrower of the Financing Documents have been duly
authorized by all necessary corporate and governmental action and do not
and will not (i) require any consent or approval of the shareholders or
board of directors of Borrower which has not been obtained, (ii) violate
any provision of any law, rule, regulation (including, without limitation,
Regulations U and X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to Borrower and/or the Articles of
Incorporation or By-Laws, where applicable, of Borrower, (iii) result in a
material breach of or constitute a material default under any indenture or
loan or credit agreement or any other agreement, lease or instrument to
which Borrower is a party or by which it or its properties may be bound or
affected, except where the failure to be in compliance is immaterial to the
financial condition or business of Borrower; or (iv) result in, or require,
the creation or imposition of any Lien on any of its properties or
revenues. Borrower is in compliance with any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or any
such indenture, agreement, lease or instrument, except where the failure to
be in compliance is immaterial to the financial condition or business of
Borrower.
(C) Acquisition of Consents. No authorization, consent, approval,
license, exemption of or filing or registration with any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or will be necessary to the valid
execution and delivery to Banks or performance by Borrower of any Financing
Documents, other than those already obtained and copies of which have been
provided to Agent and Banks pursuant to Section 3.2(H) hereof.
(D) Validity and Enforceability. Each of the Financing Documents when
delivered hereunder will constitute the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with
their respective terms.
(E) Financial Information. All financial statements and other
financial data which have been or will be furnished by Borrower are, and
will be, true and correct and reflect, or will reflect when delivered in
the future, fairly the financial condition of the Borrower and have been or
will be, prepared in accordance with GAAP consistently applied except for
changes as required by GAAP. Borrower has no contingent liabilities,
liabilities for taxes, unusual forward or long term commitments outside the
ordinary course of business, or unrealized or anticipated losses from any
unfavorable commitments which are material with respect to the financial
condition, affairs, prospects or business of Borrower except as reflected
or provided for in such financial statements.
(F) No Litigation. There are no actions, suits or proceedings pending
or, to the knowledge of Borrower, threatened against or affecting Borrower
or any of its properties before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which if determined adversely to Borrower would draw into question the
legal existence of Borrower and/or the validity, authorization and/or
enforceability of the Financing Documents and/or any provision thereof
and/or could have a material adverse effect on the financial condition,
properties, or operations of Borrower.
(G) Regulation U. Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System (12 CFR, Part 221), does not own and has no present intention of
acquiring any such margin stock or a "margin security" within the meaning
of Regulation G of the Board of Governors of the Federal Reserve System (12
CFR, Part 207). None of the proceeds of the Loans will be used directly or
indirectly by Borrower for the purpose of purchasing or carrying, or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry, any such margin security or margin stock or
for any other purpose which might constitute the transaction contemplated
hereby a "purpose credit" within the meaning of said Regulation G or
Regulation U, or cause this Agreement to violate any other regulation of
the Board of Governors of the Federal Reserve System or the Securities and
Exchange Act of 1934, as amended, or any rules or regulations promulgated
under either said statute.
(H) Absence of Adverse Agreements. Borrower is not a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any corporate or partnership restriction which
would alter the manner in which Borrower does business and which would have
a material adverse effect on the business, properties, assets, operations
or condition, financial or otherwise, of Borrower or on the ability of
Borrower to carry out its obligations under the Financing Documents.
(I) Taxes. Borrower has filed all tax returns (federal, state and
local) required to be filed and paid all taxes shown thereon to be due,
including interest and penalties, or provided adequate reserves for payment
thereof.
(J) Ownership of Properties. Borrower owns all of its properties and
assets free and clear of all Liens, except those not prohibited under
Section 5.2(A) of this Agreement.
(K) Accuracy of Representations and Warranties. None of Borrower's
representations or warranties set forth in this Agreement or in any
document or certificate taken together with any related document or
certificate furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make any statement of fact contained herein or therein, in
light of the circumstances under which it was made, not misleading; except
that unless provided otherwise any such document or certificate which is
dated speaks as of the date stated and not the present.
(L) No Investment Company. Borrower is not an "investment company" or
a company "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended, which is required to
register thereunder.
(M) Solvency. After giving effect to the consummation of the Loan as
of the time this representation and warranty is given, Borrower (a) will be
able to pay its debts as they become due, (b) will have funds and capital
sufficient to carry on its business and all businesses in which it is about
to engage, and (c) will own property having a value both at fair valuation
and at fair saleable value in the ordinary course of Borrower's business
greater than the amount required to pay its Indebtedness, including, for
this purpose, unliquidated and disputed claims. Borrower will not be
rendered insolvent by the execution and delivery of this Agreement and the
consummation of any transactions contemplated herein.
(N) Licenses, Registrations, and Compliance with Laws. Borrower, to
the best of its knowledge, has all permits, governmental licenses,
registrations, and approvals material to carrying out its businesses as
presently conducted and as required by law or the rules and regulations of
any federal, foreign governmental, state, county, or local association,
corporation, or governmental agency, body, instrumentality, or commission
having jurisdiction over Borrower, including, but not limited to the United
States Environmental Protection Agency, the United States Department of
Labor, the United States Occupational Safety and Health Administration, the
United States Equal Employment Opportunity Commission, and analogous and
related state and foreign agencies. There is no material violation or
material failure of compliance or allegation of such violation or failure
of compliance on the part of Borrower with any of the foregoing permits,
licenses, registrations, approvals, rules or regulations, and there is no
action, proceeding, or investigation pending or, to the knowledge of
Borrower, threatened, nor has Borrower received any notice of such which
might result in the termination or suspension of any such permit, license,
registration, or approval.
(O) Principal Place of Business; Books and Records. Borrower's chief
executive office is located at Borrower's address set forth in Section 8.5.
All of Borrower's books and records are kept at one or more of its
addresses set forth in Section 8.5.
(P) Title to Assets and Properties. Borrower has good and marketable
title to all of its properties and assets owned as of the date of this
Agreement and to all properties and assets acquired by Borrower thereafter
and prior to the date hereof except such imperfections in title, if any,
that do not materially interfere with the present or proposed use of such
property or otherwise materially impair business operations.
(Q) Material Adverse Change. There has been no material adverse change
in Borrower's condition, financial or otherwise, from the date of the
financial statements and other financial data dated June 30, 2000, provided
to Agent and Banks, up to and including the Closing Date.
ARTICLE V
COVENANTS OF BORROWER
Section 5.1. Affirmative Covenants of Borrower Other Than Reporting
Requirements. From the date hereof and thereafter for so long as the Loan is
outstanding or Borrower is indebted to Banks under any of the Financing
Documents, Borrower shall ensure that it shall, unless Banks shall otherwise
consent in writing:
(A) Payment of Taxes. Pay and discharge all taxes and assessments and
governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims for the same which, if
unpaid, might become a Lien upon any of its properties, provided that
(unless and until foreclosure, restraint, sale or any similar proceeding
shall have been commenced) Borrower shall not be required to pay any such
tax, assessment, charge, levy, or claim which is being contested in good
faith and by proper proceedings and for which proper reserve or other
provision has been made in accordance with GAAP.
(B) Preservation of Existence. Preserve and maintain in full force and
effect its legal existence, rights, and privileges in the jurisdiction of
its organization, preserve and maintain all licenses, governmental
approvals, trademarks, patents, trade secrets, copyrights, and trade names
owned or possessed by it and which are necessary or, in its reasonable
business judgment, desirable in view of its business and operations or the
ownership of its properties and qualify or remain qualified as a foreign
corporation in each jurisdiction in which such qualification is necessary
or, in its reasonable business judgment, desirable in view of its business
and operations and ownership of the properties.
(C) Compliance with Laws. Comply with the requirements of all present
and future applicable laws, rules, regulations, and orders of any
governmental authority having jurisdiction over it and/or its business,
except where the failure to comply would not have a material adverse effect
on Borrower.
(D) Visitation Rights.
(i) Permit, at any reasonable time and from time to time, Agent
and Banks or any agents or representatives thereof, to
examine and make copies of and abstracts from the records
and books of account of, and visit the properties of
Borrower to discuss the affairs, finances, and accounts of
Borrower with any of its officers or employees designated by
Borrower for such purposes and/or any independent certified
public accountant of Borrower.
(ii) Permit, at any reasonable time and from time to time so long
as an Loan is outstanding, Agent or Banks or any agents or
representatives thereof, to enter the properties of Borrower
and to inspect the property occupied by Borrower and related
equipment, property and soil, and to conduct soil or water
sampling, testing, monitoring, digging, drilling, and
analyses and to review any documents, materials,
inventories, financial data, or notices or correspondence to
or from private parties or governmental authorities in
connection therewith.
(E) Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions to the best of
Borrower's knowledge, in which complete entries will be made, and maintain
a standard system of accounting, all in accordance with GAAP and with
applicable requirements of any governmental authority having jurisdiction
over Borrower in question.
(F) Maintenance of Properties. Maintain and preserve all of its
properties necessary or useful in the proper conduct of its business, in
good working order, repair and condition at all times, ordinary wear and
tear excepted, and shall not commit waste or allow waste to be committed
against its properties.
(G) Other Documents. Except as otherwise required by this Agreement,
pay, perform, and fulfill all of its obligations and covenants under each
material document, instrument, or agreement to which it is a party.
(H) Environmental Liability. Borrower shall: (i) conduct and complete
all investigations, studies, sampling, and testing and all remedial,
removal, and other actions necessary to clean up and remove all Hazardous
Materials (as hereinafter defined) on, from, or affecting the property
occupied, in compliance with or in accordance with all laws, rules,
regulations, orders and directives of all federal, state, and local
governmental authorities, and (ii) defend, indemnify, and hold harmless
Bank, its employees, agents, officers, and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages,
costs, or expenses (including, without limit, attorney and consultant fees,
investigation and laboratory fees, court costs, and litigation expenses) of
whatever kind or nature, known or unknown, contingent or otherwise, arising
out of or in any way related to (a) the existing or future presence at, on,
from, or affecting any real estate owned by Borrower of any materials,
pollutants, substances or wastes which are defined, determined, or
identified as hazardous, toxic, or otherwise environmentally degrading in
any federal, state, or local laws, rules, or regulations (whether now
existing or hereafter enacted or promulgated) or any judicial or
administrative interpretation of such laws, rules, or regulations (any such
materials, pollutants, wastes, and substances being herein collectively
referred to as "Hazardous Materials"), (b) the violation of any federal,
state, or local laws, rules or regulations concerning the generation,
handling, storage, treatment or disposal of any such Hazardous Materials,
or (c) the enforcement of this Section 5.1(H) or the assertion by Borrower
of any defense to the obligations hereunder, whether any of such matters
arise before or after the Closing Date, including, without limitation, (i)
the costs of removal of any and all Hazardous Materials, (ii) additional
costs required to take necessary precautions to protect against the release
of Hazardous Materials into the air, any body of water, any other public
domain or any surrounding areas, and (iii) costs incurred to comply with
all applicable laws, orders, judgments or regulations with respect to
Hazardous Materials.
(I) Additional Assurances. From time to time hereafter, execute and
deliver, or cause to be executed and delivered, such additional
instruments, certificates and documents and take all such actions as Agent
shall reasonably request for the purpose of implementing or effectuating
the provisions of the Financing Documents and, upon the exercise by Agent
of any power, right, privilege or remedy pursuant to the Financing
Documents which requires any consent, approval, registration, qualification
or authorization of any governmental authority or instrumentality, exercise
and deliver all applications, certifications, instruments and other
documents and papers that Agent may be so required to obtain.
(J) Purposes. Use the proceeds of the Loan solely for the purposes
herein described.
(K) ERISA Compliance. Borrower shall fulfill its obligations under
minimum funding standards of the Employment Retirement Income Security Act
of 1974, as amended ("ERISA"), with respect to any plan which is maintained
by Borrower or pursuant to a collective bargaining agreement and which is
covered by Title 4 of ERISA and Borrower shall be in all material respects
in compliance with ERISA and the Internal Revenue Code of 1986, as amended,
and shall not have incurred any material liability to the Pension Benefit
Guaranty Corporation in respect thereto.
Section 5.2. Negative Covenants of Borrower. From the date hereof and
thereafter for so long as any portion of the Loan is outstanding or Borrower is
indebted to Banks under any of the Financing Documents, Borrower shall not
without the prior written consent of Banks:
(A) Liens. Create, incur, assume, or suffer to exist any Lien of any
nature, upon or with respect to any of its properties, now owned or
hereafter acquired, or assign as collateral or otherwise convey as
collateral, any right to receive income, except that the foregoing
restrictions shall not apply to any Liens:
(i) arising in the ordinary course of business;
(ii) for taxes, assessments, or governmental charges or levies on
property if the same shall not at the time be delinquent or
thereafter can be paid without penalty or interest, or (if
foreclosure, distraint, sale or other similar proceedings
shall not have been commenced) are being contested in good
faith and by appropriate proceedings diligently conducted
and for which proper reserve or other provision has been
made in accordance with GAAP;
(iii)imposed by law, such as carriers', warehousemen's and
mechanics' liens, bankers' set-off rights and other similar
liens arising in the ordinary course of business for sums
not yet due or being contested in good faith and by
appropriate proceedings diligently conducted and for which
proper reserve or other provisions has been made in
accordance with GAAP;
(iv) arising in the ordinary course of business out of pledges or
deposits under worker's compensation laws, unemployment
insurance, old age pensions, or other Social Security or
retirement benefits, or similar legislation;
(v) arising from or upon any judgment or award, provided that
such judgment or award is being contested in good faith by
proper appeal proceedings and only so long as execution
thereon shall be stayed;
(vi) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, surety bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course
of Borrower's business;
(vii)easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value
of the property subject thereto or interfere with the
ordinary conduct of business by Borrower;
(viii) arising from Indebtedness which is evidenced by the
Mortgage and Deed of Trust dated May 1, 1940, from Borrower
to American National Bank and Trust Company of Chicago, and
any and all supplements thereto;
(ix) on any property acquired, constructed or improved by
Borrower after the Closing Date which are created or assumed
contemporaneously with, or within one hundred twenty (120)
days after, such acquisition or completion of such
construction or improvement, or within six (6) months
thereafter pursuant to a firm commitment for financing
arranged with a lender or investor within such one hundred
twenty (120) day period, to secure or provide for the
payment of all or any part of such acquisition, construction
or improvement incurred after the Closing Date, or in
addition to Liens contemplated by clause (x) below, Liens on
any property existing at the time of acquisition thereof,
provided that the Liens shall not apply to any property
theretofore owned by Borrower other than, in the case of any
such construction or improvement, any theretofore unimproved
real property on which the property is constructed or the
improvement is located; and
(x) existing on any property or indebtedness of a corporation
which is merged with or into or consolidated with Borrower.
(B) Assumptions or Guaranties of Indebtedness. Assume, guarantee,
endorse, or otherwise become directly or contingently liable in connection
with any obligation, except:
(i) pursuant to the provisions of this Agreement and
Indebtedness to Bank;
(ii) Indebtedness incurred in the ordinary course of business;
(iii)assumptions, guaranties, endorsements, and contingent
liabilities within the definition of Indebtedness or
permitted by Section 5.2(H)(iii); and
(iv) if such is approved by the Indiana Utility Regulatory
Commission.
(C) Dissolution. Dissolve itself, liquidate, wind up, merge,
reorganize or consolidate with or into, or convey, sell, assign, transfer,
lease or otherwise dispose of substantially all of its assets (whether now
owned or hereafter acquired) to any Person, except that (1) any Subsidiary
may merge into or transfer assets to the Borrower and (2) any Subsidiary
may merge into or consolidate with or transfer assets to any other
Subsidiary.
(D) Sale of Assets. Sell, lease, transfer or dispose of any of its
assets except:
(i) in the ordinary course of Borrower's business;
(ii) as approved by the Indiana Utility Regulatory Commission; or
(iii)as such are released under the Mortgage and Deed of Trust
dated May 1, 1940, from Borrower to American National Bank
and Trust Company of Chicago, and any and all supplements
thereto.
(E) Change in Nature of Business. Make any material change in the
nature of its business.
(F) Sale and Leaseback. Enter into any sale and leaseback arrangement
with any lender or investor, or enter into any leases except in the normal
course of business at reasonable rents comparable to those paid for similar
leasehold interests in the area and except for those which do not exceed
Twenty-Five Million Dollars ($25,000,000) in any single transaction.
(G) Sale of Accounts. Sell, assign, discount, or dispose in any way of
promissory notes or trade acceptances held by Borrower, with or without
recourse, except in the ordinary course of Borrower's business.
(H) Indebtedness. Incur, create, become or be liable directly or
indirectly in any manner with respect to or permit to exist any
Indebtedness except:
(i) Indebtedness arising in the ordinary course of business;
(ii) Indebtedness under the Financing Documents;
(iii)Indebtedness with respect to trade obligations and other
normal accruals and customer deposits in the ordinary course
of business not yet due and payable in accordance with
customary trade terms or with respect to which Borrower is
contesting in good faith the amount or validity thereof by
appropriate proceedings and then only to the extent such
Person has set aside on its books adequate reserves
therefor;
(iv) Indebtedness outstanding on the date of this Agreement in
the form of certain lines of credit (or replacements
therefor) in the aggregate principal amount of One Hundred
Million Dollars ($100,000,000.00);
(v) Indebtedness arising under commercial paper obligations;
(vi) Indebtedness approved by the Indiana Utility Regulatory
Commission or the Federal Energy Regulatory Commission,
provided that such Indebtedness is pari passu with the
Indebtedness arising under the Financing Documents; and
(vii)Indebtedness secured by Liens permitted under Section
5.2(A).
(I) Other Agreements. If there exists an Event of Default or a
condition exists which, but for the giving of notice or passage of time or
both, would constitute an Event of Default under this Agreement, amend any
of the terms or conditions of any indenture, agreement, documents, note or
other instrument evidencing, securing, or relating to any other
Indebtedness permitted under Section 5.2(H).
(J) Payment or Prepayment of Other Loans. If there exists an Event of
Default or a condition exists which, but for the giving of notice or
passage of time or both, would constitute an Event of Default under this
Agreement, make any payment or prepayment of any principal of or interest
on or any payment, prepayment, redemption, defeasance, sinking fund
payment, other repayment of principal or deposit for the purpose of any of
the foregoing.
(K) Change of Fiscal Year. Change its fiscal year.
(L) Subordination of Claims. If there exists an Event of Default or a
condition exists which, but for the giving of notice or passage of time or
both, would constitute an Event of Default under this Agreement,
subordinate or permit to be subordinated any present or future claim
against or obligation of another Person, except as ordered in a bankruptcy
or similar creditors' remedy proceeding of such other Person.
(M) Dividends. If there exists an Event of Default or a condition
exists which, but for the giving of notice or passage of time or both,
would constitute an Event of Default under this Agreement, from the time
hereof and thereafter for so long as any portion of the Loan is outstanding
or Borrower is indebted to Bank under any of the Financing Documents,
Borrower shall not declare or make payment of dividends to shareholders of
Borrower.
(N) Capital Expenditures. If there exists an Event of Default or a
condition exists which, but for the giving of notice or passage of time or
both, would constitute an Event of Default under this Agreement, fund
aggregate capital expenditures in any fiscal year in amounts exceeding the
amount of depreciation expense reflected in the financial statements of
Borrower for such fiscal year.
(O) Financial Covenants.
(i) Issue any shares of preferred stock of Borrower in addition
to the first 100,000 shares of the preferred stock of
Borrower issued by Borrower, unless the net income of
Borrower applicable to the payment of interest on the funded
debt of Borrower and the dividends on the preferred stock of
Borrower for any twelve (12) consecutive calendar months
within the fifteen (15) calendar months immediately
preceding the calendar month within which such additional
shares of preferred stock of Borrower shall be issued, shall
have been at least one and one-half (1.5) times the
aggregate of the interest on the funded debt of Borrower for
a twelve (12) month period and the dividend requirements for
a twelve (12) month period upon the entire amount of the
preferred stock of Borrower then outstanding and such
additional shares of the preferred stock proposed to be
issued.
(ii) Authenticate or deliver bonds upon the basis of property
additions unless, as shown by a net earnings certificate,
the net earnings of Borrower for the period referred to in
such certificate shall have been in the aggregate at least
equivalent to two and one-half (2.5) times the annual
interest requirements as shown by such net earnings
certificate.
Borrower further covenants that it is in compliance with the
aforementioned financial covenants as of the Closing Date and at the
time of any Loan Request, Borrower covenants that it will have gone
through all the calculations and will be in compliance with the
aforementioned financial covenants at the time of an Loan Request.
Section 5.3. Reporting Requirements. From the date hereof and thereafter
for so long as any portion of the Commitment is outstanding or Borrower is
indebted to Bank under any of the Financing Documents, Borrower shall, unless
Banks shall otherwise consent in writing, furnish or cause to be furnished to
Bank:
(A) as soon as possible and in any event upon acquiring knowledge of
an Event of Default or Default, continuing on the date of such statement,
the written statement of an officer of Borrower setting forth details of
such Event of Default or Default and the action which Borrower proposes to
take with respect thereto;
(B) within ninety (90) days after the end of each fiscal year of
Borrower, an annual financial statement, consisting of a balance sheet of
Borrower as at the end of such year, a statement of income of Borrower for
such year setting forth in each case the corresponding figures for the
preceding fiscal year, and a statement of cash flows for such year, such
statements to be audited by a firm of independent certified public
accountants selected by Borrower and acceptable to Bank;
(C) within forty-five (45) days after the end of each fiscal quarter,
a balance sheet and combined operating income and cash flow statement in
the form of the Form l0Q which is filed with the Securities and Exchange
Commission as signed by the Chief Financial Officer of Borrower and
satisfactory to Bank;
(D) simultaneously with the furnishing of the year-end financial
statements of Borrower to be delivered pursuant to Section 5.3(B) and the
quarterly statements of Borrower to be delivered pursuant to Section
5.3(C), an Officer's Certificate of an officer which shall contain a
statement to the effect that no Event of Default or Default has occurred,
without having been waived in writing, or if there shall have been an Event
of Default not previously waived in writing pursuant to the provisions
hereof, or a Default, such Officer's Certificate shall disclose the nature
thereof;
(E) a certification in each Loan Request which specifies Borrower is
in compliance with the financial covenants required by Section 5.2(O);
(F) promptly after the commencement thereof, notice of all material
actions, suits, and proceedings before any court or governmental
department, commission, board, bureau, agency, or instrumentality, domestic
or foreign, affecting Borrower;
(G) such other information respecting the business, properties, or the
condition or operations, financial or otherwise, of Borrower as Bank may,
from time to time, reasonably request;
(H) prompt written notice of any material adverse change in Borrower's
condition, financial or otherwise, and an explanation thereof and of the
actions Borrower proposes to take with respect thereto;
(I) immediately, copies of any and all notices, correspondence,
warnings, guidance, or other written materials specifically directed at
Borrower which have a material impact on Borrower's ability to carry out
its businesses as presently conducted and which include, but shall not be
limited to any directives, compliance requirements or enforcement
requirements, received from any governmental authority in connection with
the property owned or leased by Borrower, the substances contained therein,
or the equipment or operations of Borrower in connection therewith; and
(J) promptly and in any event within five (5) days thereafter, written
notice of any change in the name of Borrower.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1. Events of Default. Borrower shall be in default under each of
the Financing Documents, upon the occurrence of any one or more of the following
events ("Events of Default"):
(A) if Borrower shall fail to make due and punctual payment of any
fees, interest, and/or other amounts payable as provided in the Note and/or
in this Agreement within ten (10) days when due and payable, or if Borrower
shall fail to make due and punctual payment of principal as provided in the
Notes and/or in this Agreement when due and payable, or if Borrower shall
fail to make any such payment of fees, interest, principal, and/or any
other amount under this Agreement and/or the Notes on the date when such
payment becomes due and payable by acceleration; or
(B) if Borrower shall make an assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due, or shall admit
in writing its inability to pay its debts as they become due, or shall file
a voluntary petition in bankruptcy, or shall file any petition or answer
seeking any reorganization, arrangement, composition, adjustment,
liquidation, dissolution, or similar relief under the present or any future
federal bankruptcy laws or other applicable federal, state, or other
statute, law or regulation, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver, or liquidator of it or of all or any
substantial part of its properties, or if corporate action shall be taken
for the purpose of effecting any of the foregoing; or
(C) to the extent not described in Section 6.1(B) of this Agreement,
(i) if Borrower shall be the subject of a bankruptcy proceeding, or (ii) if
any proceeding against it seeking any reorganization, arrangement,
composition, adjustment, liquidation, dissolution, or similar relief under
the present or any future federal bankruptcy law or other applicable
federal, foreign, state or other statute, law or regulation shall be
commenced, or (iii) if any trustee, receiver or liquidator of it or of all
or any substantial part of any or all of its properties shall be appointed
without its consent or acquiescence; provided that in any of the cases
described above in this Section 6.1(C), such proceeding or appointment
shall not be an Event of Default if Borrower shall cause such proceeding or
appointment to be discharged, vacated, dismissed, or stayed within sixty
(60) days after commencement thereof; or
(D) if final judgment or judgments in the aggregate amount of Five
Million Dollars ($5,000,000) or more shall be rendered against Borrower and
shall remain undischarged, unstayed or unpaid for an aggregate of sixty
(60) days (whether or not consecutive) after entry thereof; or
(E) if Borrower shall default (after giving effect to any applicable
grace period) in the due and punctual payment or payments on any other
Indebtedness which is in excess of the aggregate amount of Five Million
Dollars ($5,000,000.00), other than Indebtedness represented by this
Agreement, or if any default shall have occurred under any mortgage, note,
or other agreement evidencing, securing, or providing for the creation of
such Indebtedness, which results in the acceleration of such Indebtedness
or which permits, or with the giving of notice would permit, any holder or
holders of any such Indebtedness in excess of Five Million Dollars
($5,000,000.00) in an aggregate amount to accelerate the stated maturity
thereof; or
(F) if there shall be any default in the performance of any covenant
or condition contained in this Agreement and/or payment of any Indebtedness
to be observed or performed pursuant to the terms hereof after giving
effect to any applicable grace period, other than a covenant or condition
referred to in any other subsection of this Section 6.1 and such default
shall continue unremedied or unwaived, (i) in the case of any covenant or
condition contained in Section 5.3, for ten (10) Business Days, or (ii) in
the case of any other covenant or condition for which no other grace period
is provided, for thirty (30) days; or
(G) if any of the representations and warranties made or deemed made
by Borrower to Banks pursuant to this Agreement proves to have been false
or misleading in any material respect when made; or
(H) if there shall be any attachment of any deposits or other property
of Borrower in the possession of Banks or any attachment of any other
property of Borrower, which shall not be discharged within thirty (30) days
of the date of such attachment; or
(I) if any one of the unsecured or uncollateralized long-term debt
obligations of the Borrower is not rated at BBB- or better by Standard &
Poor's Corporation, at Baa3 or better by Moody's Investors Service, or at
BBB- or better by Duff & Phelps; or
(J) if at any time, in the sole discretion of Banks, there appears to
be no reasonable basis to believe that funds advanced under the Loan can be
repaid when due; or
(K) if this Agreement shall be nullified or shall cease to be in full
force and effect.
(L) if the Borrower shall suffer to exist beyond any applicable grace
period any event of default under any material agreement relating to the
borrowing of funds binding upon the Borrower, including, but not limited
to, the Mortgage and Deed of Trust from Borrower to American National Bank
and Trust Company of Chicago, dated May 1, 1940, and any and all
supplements thereto, unless such event of default has been waived in
writing by the appropriate party or parties to such agreement.
ARTICLE VII
REMEDIES OF BANK
Upon the occurrence and during the continuance of any one or more of the
Events of Default, a Bank may direct the Agent, by notice to Borrower, to
declare the obligation of Banks to make Loans to be terminated, whereupon the
same shall forthwith terminate and if directed by a Bank Agent may, by notice to
Borrower, declare the entire unpaid principal amount of the Notes and all fees
and interest accrued and unpaid thereon and/or under any of the other Financing
Documents and any and all other Indebtedness hereunder to be forthwith due and
payable, whereupon the Notes and all such accrued fees and interest and other
such Indebtedness shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Borrower; provided, however, that upon the occurrence
of an Event of Default under Section 6.1(B) or (C) of this Agreement, all of the
unpaid principal amounts of the Notes, all fees and interest accrued and unpaid
thereon and/or under any of the other Financing Documents and any and all other
such Indebtedness of Borrower to Agent, Banks and/or to any such holder shall
thereupon be due and payable in full without any need for Agent, Banks or any
other Person to make any such declaration or take any action and Banks
obligations to make the Loan shall simultaneously terminate.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Consent to Jurisdiction and Service of Process. Except to the
extent prohibited by applicable law, Borrower irrevocably:
(i) agrees that any suit, action, or other legal proceeding
arising out of this Agreement or the Loan may be brought in the
courts of record of the State of Indiana or the courts of the United
States located in the State of Indiana;
(ii) consents to the jurisdiction of each such court in any such
suit, action, or proceeding; and
(iii)waives any objection which it may have to the laying of
venue of such suit, action, or proceeding in any of such courts.
For such time as any of the Indebtedness of Borrower to Banks or Agent
shall be unpaid in whole or in part, Borrower irrevocably designates Bryan G.
Tabler, Senior Vice President, Corporate Secretary and General Counsel, One
Monument Circle, Indianapolis, Indiana 46206, as its agent to accept and
acknowledge on its behalf service of any and all process in any such suit,
action, or proceeding brought in any such court and agrees and consents that any
such service of process upon such agent and written notice of such service to
Borrower by registered or certified mail shall be taken and held to be valid
personal service upon Borrower regardless of where Borrower shall then be doing
business and that any such service of process shall be of the same force and
validity as if service were made upon it according to the laws governing the
validity and requirements of such service in each such state and waives any
claim of lack of personal service or other error by reason of any such service.
Any notice, process, pleadings, or other papers served upon the aforesaid
designated agent shall, within three (3) Business Days after such service, be
sent by certified or registered mail to Borrower at its address set forth in
this Agreement.
Section 8.2. Rights and Remedies Cumulative. No right or remedy conferred
upon or reserved to Agent or Banks in this Agreement is intended to be exclusive
of any other right or remedy and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given under this Agreement or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy under this
Agreement, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 8.3. Delay or Omission Not Waiver. No delay in exercising or
failure to exercise by Agent or Banks of any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given this Agreement or by law to Banks may be exercised from time to time and
as often as may be deemed expedient by Banks.
Section 8.4. Amendments. Agent, Banks and Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Financing Documents or changing in any manner the rights of
Agent, Banks or Borrower hereunder or waiving any Default hereunder. Any
modification, amendment, or waiver of any provision of this Agreement shall be
effective only when in writing and signed by each of the parties hereto.
Section 8.5. Addresses for Notices. All notices, requests, demands, and
other communications provided for hereunder (other than those which, under the
terms of this Agreement, may be given by telephone, which shall be effective
when received verbally) shall be in writing (including telegraphic, telexed, or
telecopied communication) and mailed, telegraphed, telexed, telecopied, or
delivered to the applicable party at the addresses indicated below:
If to Borrower:
Indianapolis Power & Light Company
One Monument Circle
Indianapolis, Indiana 46204
Attention: Daniel L. Short, Treasurer
If to Agent or ABN AMRO:
ABN AMRO Bank N.V.
Agency Services
208 South LaSalle Street
Chicago, Illinois 60604-1003
Attention: Jean Coleman
Facsimile: (312) 992-5157
Telephone: (312) 992-5179
With copies to:
ABN AMRO Bank N.V.
135 South LaSalle Street
Suite 710
Chicago, Illinois 60603
Attention: Mark Lasek/Sonny Tran
Facsimile: (312) 904-1466
Telephone: (312) 904-2074 (Mr. Lasek)
(312) 904-4042 (Mr. Tran)
ABN AMRO Bank N.V.
208 South LaSalle Street
Suite 1500
Chicago, Illinois 60604-1003
Attention: Ken Keck
Facsimile: (312) 992-5111
Telephone: (312) 992-5134
If to Union Planters:
Union Planters Bank, National Association
One Indiana Square, M.S. 227
Indianapolis, Indiana 46204
Attention: Jay Richards
Facsimile: (317) 221-6120
Telephone: (317) 221-6085
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party complying as to the delivery with the
terms of this section. All such notices, requests, demands, and other
communications shall be effective when received; provided, however, that in the
case of any notice, request, demand or other communication given via telegraph,
telex or telecopier, notice shall not be effective when received unless an
identical, originally executed version of such notice, demand, request or other
communication shall be mailed to the applicable party that same day.
Section 8.6. Costs, Expenses, and Taxes. Borrower agrees to pay on demand
the reasonable attorney fees and out-of-pocket expenses incurred by Agent in
connection with the preparation, execution, delivery, amendment, and
administration of the Financing Documents and the Loans. Borrower agrees to pay
on demand all reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Agent and/or any Bank, upon or after an
Event of Default, if any, in connection with the enforcement of any of the
Financing Documents and any amendments, waivers, or consents with respect
thereto. In addition, Borrower shall pay on demand any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution and delivery of the Financing Documents, and agrees to save Agent and
each Bank harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees, except
those resulting from Agent's or such Bank's willful misconduct. Borrower further
agrees to indemnify Agent and each Bank, its each of their directors, officers
and employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not Agent or any Bank is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Financing Documents, the transactions contemplated hereby
or the direct or indirect application or proposed application of the proceeds of
any Loan hereunder. The obligations of Borrower under this Section shall survive
the termination of this Agreement.
Section 8.7. Participations. Banks may sell participations in all or part
of the Loan or any other interest herein, in which event the participant shall
not have any rights under any Financing Document (the participant's rights
against a Bank in respect of that participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by Borrower hereunder or thereunder shall be determined
as if Banks had not sold such participation. Banks may furnish any information
concerning Banks and Borrower in the possession of Banks from time to time to
participants (including prospective participants).
Section 8.8. Binding Effect; Assignment.
(A) This Agreement shall be binding upon and inure to the benefit of
Borrower, Agent, and Banks and their respective successors and assigns,
except that Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of each
Bank.
(B) Each Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more banks or
other entities ("Purchasers") all or any part of the Loan and its rights
and obligations under its Note and under this Agreement, which assignment
shall be in an amount of not less than $5,000,000 pursuant to a form of
assignment acceptable to Agent, such Bank and such Purchaser. Unless an
Event of Default has occurred and is continuing, the consent of Borrower
shall be required prior to an assignment becoming effective with respect to
a Purchaser which is not an affiliate of Bank. Such consent shall not be
unreasonably withheld. The Bank making such an Assignment shall pay the
Administrative Agent an administrative fee in connection with each such
assignment equal to $3,500.
(C) Upon delivery to Agent and Borrower of a notice of assignment,
together with any consent required by this Section 8.8, such assignment
shall become effective on the effective date specified in such notice. On
and after the effective date of such assignment, such Purchaser shall for
all purposes be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank under this Agreement, to the same extent
as if it were an original party hereto, and no further consent or action by
the Borrower or Bank shall be required to release the transferor Bank with
respect to the percentage of the Loan assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section 8.8,
the transferor Bank and Borrower shall make appropriate arrangements so
that a replacement Note is issued to such transferor Bank and a new Note
or, as appropriate, a replacement Note, is issued to such Purchaser, in
each case in principal amounts reflecting its pro rata share of the Loans,
as adjusted pursuant to such assignment.
(D) The Borrower authorizes each Bank to disclose to any participant
(pursuant to Section 8.7) or Purchaser or any other entity acquiring an
interest in this Agreement or the Note by operation of law (each a
"Transferee") and any prospective Transferee any and all information in
Bank's possession concerning the creditworthiness of Borrower and its
subsidiaries.
(E) This Agreement and all covenants, representations and warranties
made herein and/or in any of the other Financing Documents shall survive
the making of the Loan, the execution and delivery of the Financing
Documents and shall continue in effect so long as any amounts payable under
or in connection with any of the Financing Documents or any other
Indebtedness of Borrower to Agent or any Bank remains unpaid or the
Commitment remains outstanding; provided, however, that Section 8.6 shall
survive and remain in full force and effect after expiration of the
Commitment and repayment in full of all amounts payable under or in
connection with all of the Financing Documents and any other such
Indebtedness.
Section 8.9. Actual Knowledge. For purposes of this Agreement, neither
Agent nor any Bank shall be deemed to have actual knowledge of any fact or state
of facts unless the senior loan officer or any other officer responsible for
Borrower's account established pursuant to this Agreement at Agent or such Bank
shall, in fact, have actual knowledge of such fact or state of facts or unless
written notice of such fact shall have been received by Agent or such Bank in
accordance with Section 8.5.
Section 8.10. Governing Law. This Agreement and the Notes shall be governed
by and construed in accordance with the laws of the State of Illinois without
regard to the conflicts of law rules thereof.
Section 8.11. Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.12. Headings. Article and Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument by their respective officers thereunto duly
authorized, as of the date first above written.
ATTEST: INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/ By:/s /Daniel L. Short
----------------------------- --------------------------------------
Daniel L. Short, Treasurer
Its: Assistant Secretary
----------------------------
ABN AMRO BANK N.V., in its
individual capacity as Agent
and as a Bank
By:/s/ Mark R. Lasek
--------------------------------------
Mark R. Lasek, Senior Vice President
By:/s/ Sonny K. Tran
--------------------------------------
Sonny K. Tran, Assistant Vice President
UNION PLANTERS BANK, NATIONAL ASSOCIATION
By:/s/ Jay Richards
--------------------------------------
Jay Richards, Vice President
EXHIBIT A
REVOLVING LINE
OF CREDIT PROMISSORY NOTE
(UNSECURED)
$_____________ Effective Date: November 1, 2000
FOR VALUE RECEIVED, INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana
corporation (hereinafter referred to as "Maker"), having its principal office at
One Monument Circle, Indianapolis, Indiana 46204, hereby promises to pay, unless
duly extended, on or before the Termination Date to the order of
________________, having its principal office at 135 South LaSalle Street,
Chicago, Illinois 60603 (hereinafter referred to as "Lender"), in lawful money
of the United States of America, at ABN AMRO Bank N.V.'s principal office at 135
South LaSalle Street, Chicago, Illinois 60603 or at such other place or to such
other party as the holder hereof may from time to time designate by written
notice, the principal sum of ________________ Dollars ($_____________) or, if
less, the aggregate unpaid principal amount of all Loans made by Lender to Maker
pursuant to the provisions of that certain Loan Agreement dated as of November
1, 2000, as from time to time amended (the "Loan Agreement").
Interest on the balance of the principal remaining unpaid from time to time
shall be payable (i) prior to maturity, by acceleration or otherwise, at the
rates per annum as set forth in the Loan Agreement, computed on a 360-day year
basis, or (ii) after maturity, by acceleration or otherwise at four percent (4%)
per annum in excess of the applicable rate as set forth in or pursuant to the
terms of the Loan Agreement, until paid, all with reasonable attorneys' fees and
without relief from valuation and appraisement laws.
Interest at the specified rate shall be due and payable on the first (1st)
day of each month after the date hereof or, at the discretion of either Maker or
Bank, upon maturity of any Loan. Any change in the rate of interest payable on
this Note resulting from a change in the floating rate shall become effective on
the same day of such change. If not sooner paid, the balance of the unpaid
principal and all accrued and unpaid interest shall be due and payable on
maturity of this Note pursuant to the provisions of the Loan Agreement.
This Note is given as evidence of the Loan made to Maker by the Lender
pursuant to the Loan Agreement. This Note is referred to in, and is entitled to
the benefits and further security of the Loan Agreement. This Note is subject to
the terms and conditions of the Loan Agreement, including those which determine
the interest rate, when payment of this Note may be accelerated and all amounts
hereunder declared immediately due and payable, the provisions relating to
renewal and maturity of this Note, and when payments of principal and interest
may be made. If not defined herein, all capitalized terms shall have the meaning
as defined in the Loan Agreement.
In the event of the nonpayment of any installment of principal of this note
when due and payable or the nonpayment of interest of this Note within ten (10)
days when due and payable or upon the occurrence of an Event of Default under
the Loan Agreement, the whole sum of principal and accrued interest shall, at
the option of Lender, immediately become due and payable without notice or
demand, anything contained herein or in any instrument now or hereafter securing
this Note to the contrary notwithstanding, time being of the essence. Said
option shall continue until such defaults have been cured.
Maker and all endorsers, sureties and guarantors hereof severally waive
demand, presentment for payment, notice of dishonor, protest and notice of
protest, and expressly agree that this Note and any payment coming due under it
may be extended from time to time without in any way affecting their liability
hereunder.
The rights or remedies of the holder hereof as provided in this Note and
the Loan Agreement shall be cumulative and concurrent, and may be pursued
singly, successively, or together. No delay or omission on the part of the
Lender in the exercise of any right or remedy shall operate as a waiver thereof,
and no single or partial exercise by the Lender of any right or remedy shall
preclude other or further exercise thereof or of any other right or remedy.
This Note is executed and delivered by Maker pursuant to the Loan
Agreement.
Notwithstanding anything herein or in the Loan Agreement to the contrary,
no provision contained herein and no provision contained in any of the Loan
Agreement which purports to obligate Maker to pay any amount of interest or any
fees, costs or expenses which are in excess of the maximum permitted by
applicable law, shall be effective to the extent that it requires the payment of
any interest or other sums in excess of such maximum. In the event Maker shall
at any time following the date hereof pay any amount of interest or any fees,
costs or expenses which are in excess of the maximum permitted by applicable
law, such overpayments shall be deemed to be loans from Maker to the holder
hereof, which loans shall be due and payable by the holder upon demand by Maker
together with interest from the date or dates of such overpayments calculated at
the same rate as Maker is required to pay under this Note, and the repayment of
such loans by the holder hereof shall be the sole remedy at law or in equity of
Maker for such overpayments.
The person executing this Note for and on behalf of Maker hereby certifies
that he is duly empowered by Maker and has been duly authorized by all necessary
corporate action on the part of Maker to execute and deliver this Note for and
on behalf of Maker.
Maker agrees to pay, and save the Lender or any holder of this Note
harmless against, any liability for the payment of any costs and expenses,
including reasonable attorneys fees, arising or incurred in connection with the
enforcement by the Lender or any holder of the Note of any rights under this
Note.
Maker authorizes the Lender and its affiliates, without notice, to apply
any balances, credits, deposits or moneys of Maker in the Lender's possession to
payment of any of the foregoing. Time is of the essence of this Note and all
other obligations of Maker to the Lender or any of its affiliates.
THE VALIDITY OF THIS NOTE, ITS CONSTRUCTION, INTERPRETATION AND ENFORCEMENT
AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW. MAKER AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS NOTE SHALL BE TRIED AND LITIGATED
ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF COOK, STATE OF ILLINOIS, OR
THE FEDERAL COURTS WHOSE VENUE INCLUDES THE COUNTY OF COOK, STATE OF ILLINOIS,
OR, AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL
INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. MAKER WAIVES, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY AND ANY RIGHT MAKER
MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE
TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS PARAGRAPH.
IN WITNESS WHEREOF, Maker has executed this Note by its duly authorized
officer effective as of the day and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:
--------------------------------------
Daniel L. Short, Treasurer
EXHIBIT 10.10(1)
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement (this "Amendment") dated as of
October 31, 2001, by and among Indianapolis Power & Light Company, an Indiana
corporation with its principal place of business at One Monument Circle,
Indianapolis, Indiana 46204 ("Borrower"), each of the financial institutions
from time to time party to the below defined Loan Agreement (each a "Bank" and
collectively, the "Banks"), and ABN AMRO Bank N.V. in its capacity as
administrative agent for the Banks (in such capacity, the "Agent").
WITNESSETH THAT:
WHEREAS, the Borrower, the Banks and the Agent are party to that
certain Loan Agreement dated as of November 1, 2000, (together with all
exhibits, schedules, attachments, appendices and amendments thereof, the "Loan
Agreement"); and
WHEREAS, Union Planters Bank National Association has decided not to
extend its commitment under the Loan Agreement and, accordingly, as of the
effective date of this Amendment it is no longer obligated to extend credit to
the Borrower pursuant to the terms of the Loan Agreement; and
WHEREAS, the Borrower has requested that, among other things, the Loan
Agreement be extended for an additional year and the Banks are agreeable to such
request upon, and subject to, the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrower, the Banks and the
Agent hereby agree as follows:
1. The reference to "Union Planters Bank National Association" in the title
page is hereby deleted.
2. The definition of "Fixed Rate" appearing in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety.
3. The definition of "Fixed Rate Loan" appearing in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and the following definition is
hereby substituted therefor:
"Fixed Rate Loan" means a Loan bearing interest at the rate
described in 2.1(C)(ii) hereof.
4. The definition of "Floating Rate" appearing in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and the following definition is
hereby substituted therefor:
"Floating Rate" means the rate per annum (rounded upwards, if
necessary, to the next 1/16 of one percent (.0625%)) equal to the
greater of (a) the Base Rate in effect on such day, and (b) the
Federal Funds Effective Rate in effect on such day plus
fifty-five basis points (0.55%).
5. The definition of "Notes" appearing in Section 1.1 of the Loan Agreement
is hereby amended by deleting reference to the "Union Planters Note".
6. The definition of "Union Planters Note" appearing in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety.
7. The following definitions are hereby inserted into Section 1.1 of the
Loan Agreement in proper alphabetical order:
"Adjusted LIBOR" means, for any Borrowing of Fixed Rate Loans, a
rate per annum determined in accordance with the following
formula:
Adjusted LIBOR = LIBOR
-----------------------------------
1 - Eurodollar Reserve Percentage
"Applicable Margin" means the margin to be added to Adjusted
LIBOR to determine the interest rate applicable to a Fixed Rate
Loan, such margin to be determined based upon the following grid:
S&P Rating Moody's Rating Applicable Margin
---------- -------------- -----------------
Greater than Greater than (in Basis Points)
or Equal to: or Equal to:
Level I A- A3 50
Level II BBB Baa2 75
Level III BBB- Baa3 100
In the event that the S&P Rating and Moody's Rating are not at the
same Level, the Applicable Margin shall be determined on the basis of
the higher of the two ratings unless there is more than one Level
differential between such ratings in which event the Applicable Margin
shall be determined using the middle Level.
"Applicable Telerate Page" means the display page designated as
"Page 3750" on the Telerate Service (or such other pages as may
replace any such page on that service or such other service as
may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits in U.S.
Dollars).
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a
different type into such type by the Banks on a single date and
for a single Interest Period. Borrowings of Loans are made
severally by and maintained ratably for each of the Banks
according to their share of the aggregate Commitments. A
Borrowing is "advanced" on the day Banks advance funds comprising
such Borrowing to Borrower, is "continued" on the date a new
Interest Period for the same type of Loans commences for such
Borrowing and is "converted" when such Borrowing is changed from
one type of Loan to the other, all as requested by Borrower
pursuant to Section 2.1(B).
"Eurodollar Reserve Percentage" means for an Borrowing of Fixed
Rate Loans from any Bank, the daily average for the applicable
Interest Period of the actual effective rate, expressed as a
decimal, at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are maintained by
such Bank during such Interest Period pursuant to Regulation D of
the Board of Governors of the Federal Reserve System (or any
successor) on "eurocurrency liabilities", as defined in such
Board's Regulation D (or in respect of any other category of
liabilities that includes deposits by reference to which the
interest rate on Fixed Rate Loans is determined or any category
of extensions of credit or other assets that include loans by
non-United States offices of any Bank to United States
residents), subject to any amendments of such reserve requirement
by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this
definition, the Fixed Rate Loans shall be deemed to be
"eurocurrency liabilities" as defined in Regulation D without
benefit or credit for any prorations, exemptions or offsets under
Regulation D.
"Interest Period" is defined in Section 2.1(C)(iii) hereof.
"LIBOR" means, for an Interest Period for a Borrowing of Fixed
Rate Loans, (a) the LIBOR Index Rate for such Interest Period, if
such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetical average of the rates of interest per
annum (rounded upwards, if necessary, to the nearest
one-sixteenth of one percent) at which deposits in U.S. Dollars,
in immediately available funds are offered to the Administrative
Agent at 11:00 a.m. (London, England time) two (2) Business Days
before the beginning of such Interest Period by major banks in
the interbank eurodollar market for delivery on the first day of
and for a period equal to such Interest Period in an amount equal
or comparable to the principal amount of the Fixed Rate Loan
scheduled to be made by each Lender as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per
annum (rounded upwards, if necessary, to the next higher
one-sixteenth of one percent) for deposits in U.S. Dollars for
delivery on the first day of and for a period equal to such
Interest Period in an amount equal or comparable to the principal
amount of the Fixed Rate Loan scheduled to be made by each Lender
as part of such Borrowing, which appears on the Applicable
Telerate Page as of 11:00 a.m. (London, England time) on the day
two (2) Business Days before the commencement of such Interest
Period.
"Moody's Rating" means the issuer rating assigned by Moody's
Investors Service, Inc. and any successor thereto that is a
nationally recognized rating agency to the Borrower (or if
neither Moody's Investors Service, Inc. nor any such successor
shall be in the business of providing issuer ratings, a
nationally recognized rating agency in the United States of
America as mutually agreed between the Banks and Borrower). Any
reference in this Agreement to any specific rating is a reference
to such rating as currently defined by Moody's Investors Service,
Inc. (or such a successor) and shall be deemed to refer to the
equivalent rating if such rating system changes.
"S&P Rating" means the rating assigned by Standard & Poor's
Ratings Group, a division of The McGraw-Hill Companies, Inc. and
any successor thereto that is a nationally recognized rating
agency to the outstanding senior unsecured non-credit enhanced
long-term indebtedness of the Borrower (or, if neither such
division nor any successor shall be in the business of rating
long-term indebtedness, a nationally recognized rating agency in
the United States as mutually agreed between the Banks and
Borrower). Any reference in this Agreement to any specific rating
is a reference to such rating as currently defined by Standard &
Poor's Ratings Group, a division of The McGraw-Hill Companies,
Inc. (or such a successor) and shall be deemed to refer to the
equivalent rating if such rating system changes.
8. The date "October 31, 2001" appearing in the definition of "Termination
Date" in Section 1.1 of the Loan Agreement is hereby deleted and the date
"October 30, 2002" is hereby substituted therefor.
9. The proviso appearing in the last sentence of Section 2.1(A) is hereby
deleted in its entirety.
10. Subsection 2.1(B) is hereby deleted in its entirety and the following
subsection 2.1(B) is hereby substituted therefor:
(B) Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans
(i) Notice to Agent. The Borrower shall give notice to the Agent
by no later than 12:00 noon (New York time) (i) at least three
(3) Business Days before the date on which Borrower requests the
Banks to advance a Borrowing of Fixed Rate Loans, or (ii) on the
date on which Borrower requests the Banks to advance a Borrowing
of Floating Rate Loans. The Loans included in each Borrowing
shall bear interest initially at the type of rate specified in
such notice of a new Borrowing. Thereafter, Borrower may from
time to time elect to change or continue the type of interest
rate borne by each Borrowing or, subject to Section 2.1's minimum
amount requirement for each outstanding Borrowing, a portion
thereof, as follows: (i) if such Borrowing is of Fixed Rate
Loans, on the last day of the Interest Period applicable thereto,
Borrower may continue part or all of such Borrowing as Fixed Rate
Loans for an Interest Period or Interest Periods specified by
Borrower or convert part or all of such Borrowing into Floating
Rate Loans, and (ii) if such Borrowing is of Floating Rate Loans,
on any Business Day, Borrower may convert all or part of such
Borrowing into Fixed Rate Loans for an Interest Period or
Interest Periods specified by Borrower. Borrower shall give all
such notices requesting, the advance, continuation, or conversion
of a Borrowing to the Agent by telephone or telecopy (which
notice shall be irrevocable once given and, if by telephone,
shall be promptly confirmed in writing). Notices of the
continuation of a Borrowing of Fixed Rate Loans for an additional
Interest Period or of the conversion of part or all of a
Borrowing of Fixed Rate Loans into Floating Rate Loans or of
Floating Rate Loans into Fixed Rate Loans must be given by no
later than 12:00 noon (New York time) at least three (3) Business
Days before the date of the requested continuation or conversion.
All such notices concerning the advance, continuation, or
conversion of a Borrowing shall be irrevocable once given and
shall specify the date of the requested advance, continuation or
conversion of a Borrowing (which shall be a Business Day), the
amount of the requested Borrowing to be advanced, continued, or
converted, the type of Loans to comprise such new, continued or
converted Borrowing and, if such Borrowing is to be comprised of
Fixed Rate Loans, the Interest Period applicable thereto.
Borrower agrees that the Agent may rely on any such telephonic or
telecopy notice given by any person it in good faith believes is
an authorized representative without the necessity of independent
investigation, and in the event any such notice by telephone
conflicts with any written confirmation, such telephonic notice
shall govern if the Agent has acted in reliance thereon. There
may be no more than six different Interest Periods in effect at
any one time, provided that for purposes of determining the
number of Interest Periods in effect at any one time, all
Floating Rate Loans shall be deemed to have one and the same
Interest Period.
(ii) Notice to the Banks. The Agent shall give prompt telephonic
or telecopy notice to each Bank of any notice from Borrower
received pursuant to Section 2.1(B)(i) above. The Agent shall
give notice to Borrower and each Bank by like means of the
interest rate applicable to each Borrowing of Floating Rate
Loans.
(iii) Borrower' Failure to Notify. If Borrower fails to give
notice pursuant to Section 2.1(B)(i) above of the continuation or
conversion of any outstanding principal amount of a Borrowing of
Fixed Rate Loans before the last day of its then current Interest
Period within the period required by Section 2.1(B)(i) and has
not notified the Agent within the period required by Section
2.1(D) that it intends to prepay such Borrowing, such Borrowing
shall automatically be converted into a Borrowing of Floating
Rate Loans, subject to Section 3.1 hereof. The Agent shall
promptly notify the Banks of Borrower's failure to so give a
notice under Section 2.1(B)(i).
(iv) Disbursement of Loans. Not later than 12:00 noon (New York
time) on the date of any requested advance of a new Borrowing of
Fixed Rate Loans, and not later than 2:00 p.m. (New York time) on
the date of any requested advance of a new Borrowing of Floating
Rate Loans, subject to Section 6 hereof, each Bank shall make
available its Loan comprising part of such Borrowing in funds
immediately available at the principal office of the Agent in New
York, New York. The Agent shall make available to Borrower Loans
at the Administrative Agent's principal office in New York, New
York or such other office as the Agent has previously agreed in
writing to with Borrower, in each case in the type of funds
received by the Agent from the Banks.
(v) Agent Reliance on Bank Funding. Unless the Agent shall have
been notified by a Bank before the date on which such Bank is
scheduled to make payment to the Agent of the proceeds of a Loan
(which notice shall be effective upon receipt) that such Bank
does not intend to make such payment, the Agent may assume that
such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make
available to Borrower the proceeds of the Loan to be made by such
Bank and, if any Bank has not in fact made such payment to the
Agent, such Bank shall, on demand, pay to the Agent the amount
made available to Borrower attributable to such Bank together
with interest thereon in respect of each day during the period
commencing on the date such amount was made available to Borrower
and ending on (but excluding) the date such Bank pays such amount
to the Agent at a rate per annum equal to (i) from the date the
related payment was made by the Agent to the date two (2)
Business Days after payment by such Bank is due hereunder, the
Federal Funds Effective Rate for each such day and (ii) from the
date two (2) Business Days after the date such payment is due
from such Bank to the date such payment is made by such Bank, the
Floating Rate in effect for each such day. If such amount is not
received from such Bank by the Agent immediately upon demand,
Borrower will, on demand, repay to the Agent the proceeds of the
Loan attributable to such Bank with interest thereon at a rate
per annum equal to the interest rate applicable to the relevant
Loan.
11. Subsection 2.1(C)(ii) is hereby deleted in its entirety and the
following subsection 2.1(C)(ii) is hereby substituted therefor:
Each Fixed Rate Loan made or maintained by a Bank shall bear
interest during each Interest Period it is outstanding (computed
on the basis of a year of 360 days and actual days elapsed) on
the unpaid principal amount thereof from the date such Loan is
advanced, continued, or created by conversion from a Floating
Rate Loan until maturity (whether by acceleration or otherwise)
at a rate per annum equal to the sum of the Applicable Margin
plus the Adjusted LIBOR applicable for such Interest Period,
payable on the last day of the Interest Period and at maturity
(whether by acceleration or otherwise), and, if the applicable
Interest Period is longer than three months, on each day
occurring every three months after the commencement of such
Interest Period.
12. A new subsection 2.1(C)(iii) is hereby inserted into the Loan
Agreement, which subsection 2.1(C)(iii) shall read as follows:
As provided in Section 2.1(B)(i) hereof, at the time of each
request of a Borrowing of Fixed Rate Loans, Borrower shall select
an Interest Period applicable to such Loans from among the
available options. The term "Interest Period" means the period
commencing on the date a Borrowing of Loans is advanced,
continued, or created by conversion and ending: (a) in the case
of Floating Rate Loans, on the last Business Day of each calendar
month, and (b) in the case of Fixed Rate Loans, 1, 2, 3, or 6
months thereafter; provided, however, that:
(a) any Interest Period for a Borrowing of Floating Rate
Loans that otherwise would end after the Termination Date
shall end on the Termination Date;
(b) for any Borrowing of Fixed Rate Loans, Borrower may not
select an Interest Period that extends the Termination Date;
(c) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day
of such Interest Period shall be extended to the next
succeeding Business Day, provided that, if such extension
would cause the last day of an Interest Period for a
Borrowing of Fixed Rate Loans to occur in the following
calendar month, the last day of such Interest Period shall
be the immediately preceding Business Day; and (d) for
purposes of determining an Interest Period for a Borrowing
of Fixed Rate Loans, a month means a period starting on one
day in a calendar month and ending on the numerically
corresponding day in the next calendar month; provided,
however, that if there is no numerically corresponding day
in the month in which such an Interest Period is to end or
if such an Interest Period begins on the last Business Day
of a calendar month, then such Interest Period shall end on
the last Business Day of the calendar month in which such
Interest Period is to end.
13. Subsections 2.1(D)(i) and (ii) are hereby deleted in their entirety and
the following subsections 2.1(D)(i) and (ii) are hereby substituted therefor:
(i) On the last day of an Interest Period for the Loan, upon
three (3) prior Business Day's notice to Agent; or
(ii) On any other Business Day, upon three (3) prior Business
Day's notice to Agent, and provided Borrower shall pay to each
Bank, on its demand, as compensation for a Bank's cost of
reemploying funds acquired by such Bank to fund the Loan, an
amount determined by such Bank in its sole discretion, equal to
the excess, if any, of (a) the additional interest which, but for
the prepayment, would have been payable on the prepaid Loan from
the date of prepayment until the last day of the then current
Interest Period applicable to the Loan, over (b) the interest
amount, as reasonably determined by such Bank, that such Bank
would have bid for deposits of alike amount for a period from the
date of prepayment until the last day of the then current
Interest Period applicable to that Loan. In addition Borrower
shall pay to each Bank any loss, cost or expense a Bank may incur
as a result of (x) Borrower's failure for any reason to make a
Borrowing, or convert a Floating Rate Loan to a Fixed Rate Loan,
on the date previously specified by Borrower, (y) Borrower's
failure to prepay a Fixed Rate Loan on the date previously
specified by Borrower, or (z) the payment or conversion of a
Fixed Rate Loan on a date other than the last day of the Interest
Period applicable thereto for any reason (including
acceleration).
14. The grid appearing in Section 2.8 of the Loan Agreement is hereby
deleted in its entirety and the following grid is hereby substituted therefor:
S&P Rating Moody's Rating Facility Fee Rate
---------- -------------- -----------------
Greater than Greater than Basis Points of
or Equal to: or Equal to: Aggregate
Commitment
Level I A A2 15
Level II A- A3 17.5
Level III BBB+ Baa1 20
Level IV BBB Baa2 25
Level V BBB- Baa3 30
15. Section 2.10 is hereby deleted in its entirety and the following
subsection 2.10 is hereby substituted therefor:
[Intentionally Omitted].
16. A new Section 2.13 is hereby inserted into the Loan Agreement, which
Section 2.13 shall read as follows:
If on or prior to the first day of any Interest Period for any
Borrowing of Fixed Rate Loans:
(a) the Agent determines that deposits in U.S. Dollars (in
the applicable amounts) are not being offered to major banks
in the eurodollar interbank market for such Interest Period,
or that by reason of circumstances affecting the interbank
eurodollar market adequate and reasonable means do not exist
for ascertaining the applicable LIBOR, or
(b) a Bank reasonably determines and so advises the Agent
that LIBOR as reasonably determined by the Agent will not
adequately and fairly reflect the cost to such Bank of
funding its Fixed Rate Loans or Loan for such Interest
Period,
then the Agent shall forthwith give notice thereof to Borrower
and the Banks, whereupon until the Agent notifies Borrower that
the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks or of the relevant Bank to make
Fixed Rate Loans shall be suspended.
17. Section 5.3(C) of the Loan Agreement is hereby deleted in its entirety
and the following new Section 5.3(C) is hereby substituted therefor:
within forty-five (45) days after the end of each of the first
three quarterly fiscal periods of Borrower, a consolidated
unaudited balance sheet of Borrower, and the related statements
of income and statements of cash flow, as of the close of such
period, all of the foregoing prepared by Borrower in reasonable
detail in accordance with GAAP applicable to interim financial
statements and certified by Borrower's President or Treasurer as
fairly presenting the financial condition as at the dates thereof
and the results of operations for the periods covered thereby,
subject to customary year-end adjustments.
18. Section 8.1 of the Loan Agreement is hereby amended by deleting the
reference to "Bryan G. Tabler, Senior Vice President, Corporate Secretary and
General Counsel" and inserting in its place a reference to "William H. Henley,
President".
19. Section 8.5 of the Loan Agreement is hereby amended by changing the
address for notices to the Agent or ABN AMRO to read as follows:
Notices shall be sent to ABN AMRO or Agent per the notice
information set forth on Schedule 1 hereto.
20. Section 8.5 of the Loan Agreement is hereby amended by (i) in the
notice information for the Borrower, replacing the reference to "Daniel L.
Short, Treasurer" with a reference to "Director, Financial Services".
21. A new Schedule 1 in the form of Schedule 1 hereto is hereby added to
the Loan Agreement.
22. The number "$30,000,000.00" appearing on the title page of the Loan
Agreement is hereby deleted and the number "$15,000,000.00" is hereby
substituted in its place.
23. The definition of "Aggregate Commitment" appearing in Section 1.1 of
the Loan Agreement is hereby deleted in its entirety and the following
definition is hereby substituted therefor:
"Aggregate Commitment" means Fifteen Million and No/100 Dollars
($15,000,000.00), representing the aggregate Commitments of the
Banks."
Except as expressly amended hereby, the Loan Agreement and all other
documents executed in connection therewith shall remain in full force and effect
in accordance with their respective terms. The Loan Agreement, as amended
hereby, and all rights and powers created thereby and thereunder or under such
other documents are in all respects ratified and confirmed. From and after the
date hereof, the Loan Agreement shall be deemed to be amended and modified as
herein provided, but, except as so amended and modified, the Loan Agreement
shall continue in full force and effect in accordance with its terms and the
Loan Agreement and this Amendment shall be read, taken and construed as one and
the same instrument. On and after the date hereof the term "Agreement" as used
in the Loan Agreement and all other references to the Loan Agreement in the Loan
Agreement, the other documents executed in connection therewith and/or herewith
or any other instrument, document or writing executed by the Borrower or any
other person or furnished to the Agent and/or the Banks by the Borrower, or any
other person in connection herewith or therewith, shall be deemed to be a
reference to the Loan Agreement as hereby amended.
As a condition precedent to the effectiveness of this Amendment, the
Borrower shall pay to the Agent, for the benefit of the Banks based upon their
Commitments, an amendment fee equal to two and one-half basis points (0.025%) of
the aggregate Commitments in effect on the effective date hereof.
On and as of the date hereof, the Borrower represents and warrants to
the Agent and the Banks that:
(a) Except for the litigation disclosed on Schedule II hereto to
the extent such litigation could have a material adverse effect on the
Borrower's financial condition, properties, or operations, the
representations and warranties contained in this Amendment and the Loan
Agreement are true and correct in all material respects, in each case as
though made on and as of the date hereof, except to the extent such
representations and warranties relate solely to an earlier date (and then
as of such earlier date); and
(b) Both before and after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing or would
result from the execution and delivery of this Amendment; and
(c) The Borrower is, and will be, in full compliance with all of
the material terms, conditions and all other provisions of this Amendment
and the Financing Documents; and
(d) This Amendment has been duly authorized, executed and
delivered on its behalf, and both the Loan Agreement, both before being
amended and supplemented hereby and as amended and supplemented hereby,
and this Amendment constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except to the extent
that a remedy or default may be determined by a court of competent
jurisdiction to constitute a penalty and except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights or by
general principles of equity.
This Amendment shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
This Amendment may be signed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Amendment may also be executed by facsimile,
and each facsimile signature of a party hereto shall for all intents and
purposes be deemed an original signature of such party.
Except as otherwise specified herein, this Amendment embodies the
entire agreement and understanding between the Borrower and the Banks with
respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter.
This Amendment shall be binding upon and inure to the benefit of the
Agent and the Banks and their successors and assigns and the Borrower and its
permitted successors and assigns.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:/s/ William H. Henley
----------------------------------
William H. Henley, President
ABN AMRO BANK N.V., in its individual
capacity as Agent and
as a Bank
By:/s/ Jeffrey Dodd
----------------------------------
Name: Jeffrey Dodd
----------------------------
Group Vice President
By:/s/ Sonny K. Tran
----------------------------------
Name:Sonny K. Tran
---------------------------
Assistant Vice President
SCHEDULE 1
AGENT'S NOTICE AND PAYMENT INFORMATION
Part A - Payments
Loan Repayments, Interest, Fees:
ABN AMRO Bank N.V.
New York, NY
ABA # [__________________]
F/O ABN AMRO Bank, N.V.
Chicago Branch CPU
Account # [____________________]
Reference: Agency Services Indianapolis Power & Light Company
Part B - Notices
Notices related to commitments, covenants or extensions of expiry/termination
dates:
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Agency Services
E-Mail: beata.konopko@abnamro.com
FAX: (312)-992-5157
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Credit Administration
E-Mail: kenneth.keck@abnamro.com
FAX: 312-992-5111
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 710
Chicago, Illinois 60603
Attn: Thomas Sterr
E-Mail: thomas.sterr@abnamro.com
FAX: (312)-904-6387
Notices related to Loans and Fees:
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Agency Services
E-Mail: beata.konopko@abnamro.com
FAX: 312-992-5157
Address for all Required Executed Documentation and Financial Information:
BN AMRO Bank N.V.
08 South LaSalle Street, Suite 1500
hicago, IL 60604-1003
ttn: Credit Administration
-Mail: kenneth.keck@abnamro.com
AX: 312-992-5111
SCHEDULE II- LITIGATION
Indiana Utility Regulatory Commission Filing
On July 25, 2001, the IURC issued an order commencing a formal investigation
regarding our ability to provide reasonable services to our customers. The order
states that the IURC is concerned about the length of time it took us to restore
service to our customers after two successive storms on July 8, 2001, caused
major power outages. The storms on July 8 were the worst storms we experienced
since 1992. A prehearing conference was held on August 20, 2001. In that
meeting, the IURC announced that its evidentiary hearing would be completed by
October 31, 2001, and a decision announced by the end of November. Although it
is impossible to predict the outcome of the IURC's investigation, our management
does not believe that this will have a material impact on IPL or on us.
On August 16, 2001, IPL filed a request with the Indiana Utility Regulatory
Commission requesting permission to offer a one-time payment of $100 to any
residential customer whose service was interrupted for more than 48 hours as a
result of the storms. IPL's request was approved on September 5, 2001.
Anticipated payments should occur within 60 days and we estimate total payments
to be approximately $2.0 to $3.0 million.
Legal Proceedings
On July 25, 2001, the IURC issued an order commencing a formal investigation
regarding our ability to provide reasonable services to our customers. See
"--Regulatory Matters--Indiana Utility Regulatory Commission Filing."
IPL has been named as a defendant in approximately 25 lawsuits alleging personal
injury or wrongful death stemming from exposure to asbestos and asbestos
containing products formerly located in IPL power plants. IPL has been named as
a "premises defendant" in that IPL did not mine, manufacture, distribute or
install asbestos or asbestos containing products. These suits have been brought
on behalf of persons who worked for contractors or subcontractors hired by IPL.
Many of the primary defendants--the asbestos manufacturers--have filed for
bankruptcy protection, and it is expected that many of the remaining
manufacturers will also be forced into bankruptcy. IPL may have insurance
coverage for these claims; currently, these cases are being defended by counsel
retained by various insurers who wrote "occurrence" coverage policies applicable
to the period of time during which much of the exposure has been alleged.
Although we do not believe that any of the pending asbestos suits in which IPL
is a named defendant will have a material adverse effect on our business or
operations, we are unable to predict the number or effect any additional suits
may have, or the consequences to IPL of the bankruptcy of the asbestos
manufacturers; accordingly, we cannot assure you that any additional suits will
not have a material effect on our business or operations.
In addition to the foregoing, we are a defendant in various actions relating to
various aspects of our business. While it is impossible to predict the ultimate
disposition of any litigation, we do not believe that any of these lawsuits,
either individually or in the aggregate, will have a material adverse effect on
our financial condition, results of operations or liquidity.
EXHIBIT 10.10(1)
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement (this "Amendment") dated as of
October 31, 2001, by and among Indianapolis Power & Light Company, an Indiana
corporation with its principal place of business at One Monument Circle,
Indianapolis, Indiana 46204 ("Borrower"), each of the financial institutions
from time to time party to the below defined Loan Agreement (each a "Bank" and
collectively, the "Banks"), and ABN AMRO Bank N.V. in its capacity as
administrative agent for the Banks (in such capacity, the "Agent").
WITNESSETH THAT:
WHEREAS, the Borrower, the Banks and the Agent are party to that
certain Loan Agreement dated as of November 1, 2000, (together with all
exhibits, schedules, attachments, appendices and amendments thereof, the "Loan
Agreement"); and
WHEREAS, Union Planters Bank National Association has decided not to
extend its commitment under the Loan Agreement and, accordingly, as of the
effective date of this Amendment it is no longer obligated to extend credit to
the Borrower pursuant to the terms of the Loan Agreement; and
WHEREAS, the Borrower has requested that, among other things, the Loan
Agreement be extended for an additional year and the Banks are agreeable to such
request upon, and subject to, the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrower, the Banks and the
Agent hereby agree as follows:
1. The reference to "Union Planters Bank National Association" in the title
page is hereby deleted.
2. The definition of "Fixed Rate" appearing in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety.
3. The definition of "Fixed Rate Loan" appearing in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and the following definition is
hereby substituted therefor:
"Fixed Rate Loan" means a Loan bearing interest at the rate
described in 2.1(C)(ii) hereof.
4. The definition of "Floating Rate" appearing in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and the following definition is
hereby substituted therefor:
"Floating Rate" means the rate per annum (rounded upwards, if
necessary, to the next 1/16 of one percent (.0625%)) equal to the
greater of (a) the Base Rate in effect on such day, and (b) the
Federal Funds Effective Rate in effect on such day plus
fifty-five basis points (0.55%).
5. The definition of "Notes" appearing in Section 1.1 of the Loan Agreement
is hereby amended by deleting reference to the "Union Planters Note".
6. The definition of "Union Planters Note" appearing in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety.
7. The following definitions are hereby inserted into Section 1.1 of the
Loan Agreement in proper alphabetical order:
"Adjusted LIBOR" means, for any Borrowing of Fixed Rate Loans, a
rate per annum determined in accordance with the following
formula:
Adjusted LIBOR = LIBOR
-----------------------------------
1 - Eurodollar Reserve Percentage
"Applicable Margin" means the margin to be added to Adjusted
LIBOR to determine the interest rate applicable to a Fixed Rate
Loan, such margin to be determined based upon the following grid:
S&P Rating Moody's Rating Applicable Margin
---------- -------------- -----------------
Greater than Greater than (in Basis Points)
or Equal to: or Equal to:
Level I A- A3 50
Level II BBB Baa2 75
Level III BBB- Baa3 100
In the event that the S&P Rating and Moody's Rating are not at the
same Level, the Applicable Margin shall be determined on the basis of
the higher of the two ratings unless there is more than one Level
differential between such ratings in which event the Applicable Margin
shall be determined using the middle Level.
"Applicable Telerate Page" means the display page designated as
"Page 3750" on the Telerate Service (or such other pages as may
replace any such page on that service or such other service as
may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits in U.S.
Dollars).
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a
different type into such type by the Banks on a single date and
for a single Interest Period. Borrowings of Loans are made
severally by and maintained ratably for each of the Banks
according to their share of the aggregate Commitments. A
Borrowing is "advanced" on the day Banks advance funds comprising
such Borrowing to Borrower, is "continued" on the date a new
Interest Period for the same type of Loans commences for such
Borrowing and is "converted" when such Borrowing is changed from
one type of Loan to the other, all as requested by Borrower
pursuant to Section 2.1(B).
"Eurodollar Reserve Percentage" means for an Borrowing of Fixed
Rate Loans from any Bank, the daily average for the applicable
Interest Period of the actual effective rate, expressed as a
decimal, at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are maintained by
such Bank during such Interest Period pursuant to Regulation D of
the Board of Governors of the Federal Reserve System (or any
successor) on "eurocurrency liabilities", as defined in such
Board's Regulation D (or in respect of any other category of
liabilities that includes deposits by reference to which the
interest rate on Fixed Rate Loans is determined or any category
of extensions of credit or other assets that include loans by
non-United States offices of any Bank to United States
residents), subject to any amendments of such reserve requirement
by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this
definition, the Fixed Rate Loans shall be deemed to be
"eurocurrency liabilities" as defined in Regulation D without
benefit or credit for any prorations, exemptions or offsets under
Regulation D.
"Interest Period" is defined in Section 2.1(C)(iii) hereof.
"LIBOR" means, for an Interest Period for a Borrowing of Fixed
Rate Loans, (a) the LIBOR Index Rate for such Interest Period, if
such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetical average of the rates of interest per
annum (rounded upwards, if necessary, to the nearest
one-sixteenth of one percent) at which deposits in U.S. Dollars,
in immediately available funds are offered to the Administrative
Agent at 11:00 a.m. (London, England time) two (2) Business Days
before the beginning of such Interest Period by major banks in
the interbank eurodollar market for delivery on the first day of
and for a period equal to such Interest Period in an amount equal
or comparable to the principal amount of the Fixed Rate Loan
scheduled to be made by each Lender as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per
annum (rounded upwards, if necessary, to the next higher
one-sixteenth of one percent) for deposits in U.S. Dollars for
delivery on the first day of and for a period equal to such
Interest Period in an amount equal or comparable to the principal
amount of the Fixed Rate Loan scheduled to be made by each Lender
as part of such Borrowing, which appears on the Applicable
Telerate Page as of 11:00 a.m. (London, England time) on the day
two (2) Business Days before the commencement of such Interest
Period.
"Moody's Rating" means the issuer rating assigned by Moody's
Investors Service, Inc. and any successor thereto that is a
nationally recognized rating agency to the Borrower (or if
neither Moody's Investors Service, Inc. nor any such successor
shall be in the business of providing issuer ratings, a
nationally recognized rating agency in the United States of
America as mutually agreed between the Banks and Borrower). Any
reference in this Agreement to any specific rating is a reference
to such rating as currently defined by Moody's Investors Service,
Inc. (or such a successor) and shall be deemed to refer to the
equivalent rating if such rating system changes.
"S&P Rating" means the rating assigned by Standard & Poor's
Ratings Group, a division of The McGraw-Hill Companies, Inc. and
any successor thereto that is a nationally recognized rating
agency to the outstanding senior unsecured non-credit enhanced
long-term indebtedness of the Borrower (or, if neither such
division nor any successor shall be in the business of rating
long-term indebtedness, a nationally recognized rating agency in
the United States as mutually agreed between the Banks and
Borrower). Any reference in this Agreement to any specific rating
is a reference to such rating as currently defined by Standard &
Poor's Ratings Group, a division of The McGraw-Hill Companies,
Inc. (or such a successor) and shall be deemed to refer to the
equivalent rating if such rating system changes.
8. The date "October 31, 2001" appearing in the definition of "Termination
Date" in Section 1.1 of the Loan Agreement is hereby deleted and the date
"October 30, 2002" is hereby substituted therefor.
9. The proviso appearing in the last sentence of Section 2.1(A) is hereby
deleted in its entirety.
10. Subsection 2.1(B) is hereby deleted in its entirety and the following
subsection 2.1(B) is hereby substituted therefor:
(B) Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans
(i) Notice to Agent. The Borrower shall give notice to the Agent
by no later than 12:00 noon (New York time) (i) at least three
(3) Business Days before the date on which Borrower requests the
Banks to advance a Borrowing of Fixed Rate Loans, or (ii) on the
date on which Borrower requests the Banks to advance a Borrowing
of Floating Rate Loans. The Loans included in each Borrowing
shall bear interest initially at the type of rate specified in
such notice of a new Borrowing. Thereafter, Borrower may from
time to time elect to change or continue the type of interest
rate borne by each Borrowing or, subject to Section 2.1's minimum
amount requirement for each outstanding Borrowing, a portion
thereof, as follows: (i) if such Borrowing is of Fixed Rate
Loans, on the last day of the Interest Period applicable thereto,
Borrower may continue part or all of such Borrowing as Fixed Rate
Loans for an Interest Period or Interest Periods specified by
Borrower or convert part or all of such Borrowing into Floating
Rate Loans, and (ii) if such Borrowing is of Floating Rate Loans,
on any Business Day, Borrower may convert all or part of such
Borrowing into Fixed Rate Loans for an Interest Period or
Interest Periods specified by Borrower. Borrower shall give all
such notices requesting, the advance, continuation, or conversion
of a Borrowing to the Agent by telephone or telecopy (which
notice shall be irrevocable once given and, if by telephone,
shall be promptly confirmed in writing). Notices of the
continuation of a Borrowing of Fixed Rate Loans for an additional
Interest Period or of the conversion of part or all of a
Borrowing of Fixed Rate Loans into Floating Rate Loans or of
Floating Rate Loans into Fixed Rate Loans must be given by no
later than 12:00 noon (New York time) at least three (3) Business
Days before the date of the requested continuation or conversion.
All such notices concerning the advance, continuation, or
conversion of a Borrowing shall be irrevocable once given and
shall specify the date of the requested advance, continuation or
conversion of a Borrowing (which shall be a Business Day), the
amount of the requested Borrowing to be advanced, continued, or
converted, the type of Loans to comprise such new, continued or
converted Borrowing and, if such Borrowing is to be comprised of
Fixed Rate Loans, the Interest Period applicable thereto.
Borrower agrees that the Agent may rely on any such telephonic or
telecopy notice given by any person it in good faith believes is
an authorized representative without the necessity of independent
investigation, and in the event any such notice by telephone
conflicts with any written confirmation, such telephonic notice
shall govern if the Agent has acted in reliance thereon. There
may be no more than six different Interest Periods in effect at
any one time, provided that for purposes of determining the
number of Interest Periods in effect at any one time, all
Floating Rate Loans shall be deemed to have one and the same
Interest Period.
(ii) Notice to the Banks. The Agent shall give prompt telephonic
or telecopy notice to each Bank of any notice from Borrower
received pursuant to Section 2.1(B)(i) above. The Agent shall
give notice to Borrower and each Bank by like means of the
interest rate applicable to each Borrowing of Floating Rate
Loans.
(iii) Borrower' Failure to Notify. If Borrower fails to give
notice pursuant to Section 2.1(B)(i) above of the continuation or
conversion of any outstanding principal amount of a Borrowing of
Fixed Rate Loans before the last day of its then current Interest
Period within the period required by Section 2.1(B)(i) and has
not notified the Agent within the period required by Section
2.1(D) that it intends to prepay such Borrowing, such Borrowing
shall automatically be converted into a Borrowing of Floating
Rate Loans, subject to Section 3.1 hereof. The Agent shall
promptly notify the Banks of Borrower's failure to so give a
notice under Section 2.1(B)(i).
(iv) Disbursement of Loans. Not later than 12:00 noon (New York
time) on the date of any requested advance of a new Borrowing of
Fixed Rate Loans, and not later than 2:00 p.m. (New York time) on
the date of any requested advance of a new Borrowing of Floating
Rate Loans, subject to Section 6 hereof, each Bank shall make
available its Loan comprising part of such Borrowing in funds
immediately available at the principal office of the Agent in New
York, New York. The Agent shall make available to Borrower Loans
at the Administrative Agent's principal office in New York, New
York or such other office as the Agent has previously agreed in
writing to with Borrower, in each case in the type of funds
received by the Agent from the Banks.
(v) Agent Reliance on Bank Funding. Unless the Agent shall have
been notified by a Bank before the date on which such Bank is
scheduled to make payment to the Agent of the proceeds of a Loan
(which notice shall be effective upon receipt) that such Bank
does not intend to make such payment, the Agent may assume that
such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make
available to Borrower the proceeds of the Loan to be made by such
Bank and, if any Bank has not in fact made such payment to the
Agent, such Bank shall, on demand, pay to the Agent the amount
made available to Borrower attributable to such Bank together
with interest thereon in respect of each day during the period
commencing on the date such amount was made available to Borrower
and ending on (but excluding) the date such Bank pays such amount
to the Agent at a rate per annum equal to (i) from the date the
related payment was made by the Agent to the date two (2)
Business Days after payment by such Bank is due hereunder, the
Federal Funds Effective Rate for each such day and (ii) from the
date two (2) Business Days after the date such payment is due
from such Bank to the date such payment is made by such Bank, the
Floating Rate in effect for each such day. If such amount is not
received from such Bank by the Agent immediately upon demand,
Borrower will, on demand, repay to the Agent the proceeds of the
Loan attributable to such Bank with interest thereon at a rate
per annum equal to the interest rate applicable to the relevant
Loan.
11. Subsection 2.1(C)(ii) is hereby deleted in its entirety and the
following subsection 2.1(C)(ii) is hereby substituted therefor:
Each Fixed Rate Loan made or maintained by a Bank shall bear
interest during each Interest Period it is outstanding (computed
on the basis of a year of 360 days and actual days elapsed) on
the unpaid principal amount thereof from the date such Loan is
advanced, continued, or created by conversion from a Floating
Rate Loan until maturity (whether by acceleration or otherwise)
at a rate per annum equal to the sum of the Applicable Margin
plus the Adjusted LIBOR applicable for such Interest Period,
payable on the last day of the Interest Period and at maturity
(whether by acceleration or otherwise), and, if the applicable
Interest Period is longer than three months, on each day
occurring every three months after the commencement of such
Interest Period.
12. A new subsection 2.1(C)(iii) is hereby inserted into the Loan
Agreement, which subsection 2.1(C)(iii) shall read as follows:
As provided in Section 2.1(B)(i) hereof, at the time of each
request of a Borrowing of Fixed Rate Loans, Borrower shall select
an Interest Period applicable to such Loans from among the
available options. The term "Interest Period" means the period
commencing on the date a Borrowing of Loans is advanced,
continued, or created by conversion and ending: (a) in the case
of Floating Rate Loans, on the last Business Day of each calendar
month, and (b) in the case of Fixed Rate Loans, 1, 2, 3, or 6
months thereafter; provided, however, that:
(a) any Interest Period for a Borrowing of Floating Rate
Loans that otherwise would end after the Termination Date
shall end on the Termination Date;
(b) for any Borrowing of Fixed Rate Loans, Borrower may not
select an Interest Period that extends the Termination Date;
(c) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day
of such Interest Period shall be extended to the next
succeeding Business Day, provided that, if such extension
would cause the last day of an Interest Period for a
Borrowing of Fixed Rate Loans to occur in the following
calendar month, the last day of such Interest Period shall
be the immediately preceding Business Day; and (d) for
purposes of determining an Interest Period for a Borrowing
of Fixed Rate Loans, a month means a period starting on one
day in a calendar month and ending on the numerically
corresponding day in the next calendar month; provided,
however, that if there is no numerically corresponding day
in the month in which such an Interest Period is to end or
if such an Interest Period begins on the last Business Day
of a calendar month, then such Interest Period shall end on
the last Business Day of the calendar month in which such
Interest Period is to end.
13. Subsections 2.1(D)(i) and (ii) are hereby deleted in their entirety and
the following subsections 2.1(D)(i) and (ii) are hereby substituted therefor:
(i) On the last day of an Interest Period for the Loan, upon
three (3) prior Business Day's notice to Agent; or
(ii) On any other Business Day, upon three (3) prior Business
Day's notice to Agent, and provided Borrower shall pay to each
Bank, on its demand, as compensation for a Bank's cost of
reemploying funds acquired by such Bank to fund the Loan, an
amount determined by such Bank in its sole discretion, equal to
the excess, if any, of (a) the additional interest which, but for
the prepayment, would have been payable on the prepaid Loan from
the date of prepayment until the last day of the then current
Interest Period applicable to the Loan, over (b) the interest
amount, as reasonably determined by such Bank, that such Bank
would have bid for deposits of alike amount for a period from the
date of prepayment until the last day of the then current
Interest Period applicable to that Loan. In addition Borrower
shall pay to each Bank any loss, cost or expense a Bank may incur
as a result of (x) Borrower's failure for any reason to make a
Borrowing, or convert a Floating Rate Loan to a Fixed Rate Loan,
on the date previously specified by Borrower, (y) Borrower's
failure to prepay a Fixed Rate Loan on the date previously
specified by Borrower, or (z) the payment or conversion of a
Fixed Rate Loan on a date other than the last day of the Interest
Period applicable thereto for any reason (including
acceleration).
14. The grid appearing in Section 2.8 of the Loan Agreement is hereby
deleted in its entirety and the following grid is hereby substituted therefor:
S&P Rating Moody's Rating Facility Fee Rate
---------- -------------- -----------------
Greater than Greater than Basis Points of
or Equal to: or Equal to: Aggregate
Commitment
Level I A A2 15
Level II A- A3 17.5
Level III BBB+ Baa1 20
Level IV BBB Baa2 25
Level V BBB- Baa3 30
15. Section 2.10 is hereby deleted in its entirety and the following
subsection 2.10 is hereby substituted therefor:
[Intentionally Omitted].
16. A new Section 2.13 is hereby inserted into the Loan Agreement, which
Section 2.13 shall read as follows:
If on or prior to the first day of any Interest Period for any
Borrowing of Fixed Rate Loans:
(a) the Agent determines that deposits in U.S. Dollars (in
the applicable amounts) are not being offered to major banks
in the eurodollar interbank market for such Interest Period,
or that by reason of circumstances affecting the interbank
eurodollar market adequate and reasonable means do not exist
for ascertaining the applicable LIBOR, or
(b) a Bank reasonably determines and so advises the Agent
that LIBOR as reasonably determined by the Agent will not
adequately and fairly reflect the cost to such Bank of
funding its Fixed Rate Loans or Loan for such Interest
Period,
then the Agent shall forthwith give notice thereof to Borrower
and the Banks, whereupon until the Agent notifies Borrower that
the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks or of the relevant Bank to make
Fixed Rate Loans shall be suspended.
17. Section 5.3(C) of the Loan Agreement is hereby deleted in its entirety
and the following new Section 5.3(C) is hereby substituted therefor:
within forty-five (45) days after the end of each of the first
three quarterly fiscal periods of Borrower, a consolidated
unaudited balance sheet of Borrower, and the related statements
of income and statements of cash flow, as of the close of such
period, all of the foregoing prepared by Borrower in reasonable
detail in accordance with GAAP applicable to interim financial
statements and certified by Borrower's President or Treasurer as
fairly presenting the financial condition as at the dates thereof
and the results of operations for the periods covered thereby,
subject to customary year-end adjustments.
18. Section 8.1 of the Loan Agreement is hereby amended by deleting the
reference to "Bryan G. Tabler, Senior Vice President, Corporate Secretary and
General Counsel" and inserting in its place a reference to "William H. Henley,
President".
19. Section 8.5 of the Loan Agreement is hereby amended by changing the
address for notices to the Agent or ABN AMRO to read as follows:
Notices shall be sent to ABN AMRO or Agent per the notice
information set forth on Schedule 1 hereto.
20. Section 8.5 of the Loan Agreement is hereby amended by (i) in the
notice information for the Borrower, replacing the reference to "Daniel L.
Short, Treasurer" with a reference to "Director, Financial Services".
21. A new Schedule 1 in the form of Schedule 1 hereto is hereby added to
the Loan Agreement.
22. The number "$30,000,000.00" appearing on the title page of the Loan
Agreement is hereby deleted and the number "$15,000,000.00" is hereby
substituted in its place.
23. The definition of "Aggregate Commitment" appearing in Section 1.1 of
the Loan Agreement is hereby deleted in its entirety and the following
definition is hereby substituted therefor:
"Aggregate Commitment" means Fifteen Million and No/100 Dollars
($15,000,000.00), representing the aggregate Commitments of the
Banks."
Except as expressly amended hereby, the Loan Agreement and all other
documents executed in connection therewith shall remain in full force and effect
in accordance with their respective terms. The Loan Agreement, as amended
hereby, and all rights and powers created thereby and thereunder or under such
other documents are in all respects ratified and confirmed. From and after the
date hereof, the Loan Agreement shall be deemed to be amended and modified as
herein provided, but, except as so amended and modified, the Loan Agreement
shall continue in full force and effect in accordance with its terms and the
Loan Agreement and this Amendment shall be read, taken and construed as one and
the same instrument. On and after the date hereof the term "Agreement" as used
in the Loan Agreement and all other references to the Loan Agreement in the Loan
Agreement, the other documents executed in connection therewith and/or herewith
or any other instrument, document or writing executed by the Borrower or any
other person or furnished to the Agent and/or the Banks by the Borrower, or any
other person in connection herewith or therewith, shall be deemed to be a
reference to the Loan Agreement as hereby amended.
As a condition precedent to the effectiveness of this Amendment, the
Borrower shall pay to the Agent, for the benefit of the Banks based upon their
Commitments, an amendment fee equal to two and one-half basis points (0.025%) of
the aggregate Commitments in effect on the effective date hereof.
On and as of the date hereof, the Borrower represents and warrants to
the Agent and the Banks that:
(a) Except for the litigation disclosed on Schedule II hereto to
the extent such litigation could have a material adverse effect on the
Borrower's financial condition, properties, or operations, the
representations and warranties contained in this Amendment and the Loan
Agreement are true and correct in all material respects, in each case as
though made on and as of the date hereof, except to the extent such
representations and warranties relate solely to an earlier date (and then
as of such earlier date); and
(b) Both before and after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing or would
result from the execution and delivery of this Amendment; and
(c) The Borrower is, and will be, in full compliance with all of
the material terms, conditions and all other provisions of this Amendment
and the Financing Documents; and
(d) This Amendment has been duly authorized, executed and
delivered on its behalf, and both the Loan Agreement, both before being
amended and supplemented hereby and as amended and supplemented hereby,
and this Amendment constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except to the extent
that a remedy or default may be determined by a court of competent
jurisdiction to constitute a penalty and except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights or by
general principles of equity.
This Amendment shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
This Amendment may be signed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Amendment may also be executed by facsimile,
and each facsimile signature of a party hereto shall for all intents and
purposes be deemed an original signature of such party.
Except as otherwise specified herein, this Amendment embodies the
entire agreement and understanding between the Borrower and the Banks with
respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter.
This Amendment shall be binding upon and inure to the benefit of the
Agent and the Banks and their successors and assigns and the Borrower and its
permitted successors and assigns.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:/s/William H. Henley
----------------------------------
William H. Henley, President
ABN AMRO BANK N.V., in its individual
capacity as Agent and
as a Bank
By:/s/Jeffrey Dodd
----------------------------------
Name: Jeffrey Dodd
----------------------------
Group Vice President
By:/s/Sonny K. Tran
----------------------------------
Name:Sonny K. Tran
---------------------------
Assistant Vice President
SCHEDULE 1
AGENT'S NOTICE AND PAYMENT INFORMATION
Part A - Payments
Loan Repayments, Interest, Fees:
ABN AMRO Bank N.V.
New York, NY
ABA # [__________________]
F/O ABN AMRO Bank, N.V.
Chicago Branch CPU
Account # [____________________]
Reference: Agency Services Indianapolis Power & Light Company
Part B - Notices
Notices related to commitments, covenants or extensions of expiry/termination
dates:
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Agency Services
E-Mail: beata.konopko@abnamro.com
FAX: (312)-992-5157
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Credit Administration
E-Mail: kenneth.keck@abnamro.com
FAX: 312-992-5111
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 710
Chicago, Illinois 60603
Attn: Thomas Sterr
E-Mail: thomas.sterr@abnamro.com
FAX: (312)-904-6387
Notices related to Loans and Fees:
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Agency Services
E-Mail: beata.konopko@abnamro.com
FAX: 312-992-5157
Address for all Required Executed Documentation and Financial Information:
BN AMRO Bank N.V.
08 South LaSalle Street, Suite 1500
hicago, IL 60604-1003
ttn: Credit Administration
-Mail: kenneth.keck@abnamro.com
AX: 312-992-5111
SCHEDULE II- LITIGATION
Indiana Utility Regulatory Commission Filing
On July 25, 2001, the IURC issued an order commencing a formal investigation
regarding our ability to provide reasonable services to our customers. The order
states that the IURC is concerned about the length of time it took us to restore
service to our customers after two successive storms on July 8, 2001, caused
major power outages. The storms on July 8 were the worst storms we experienced
since 1992. A prehearing conference was held on August 20, 2001. In that
meeting, the IURC announced that its evidentiary hearing would be completed by
October 31, 2001, and a decision announced by the end of November. Although it
is impossible to predict the outcome of the IURC's investigation, our management
does not believe that this will have a material impact on IPL or on us.
On August 16, 2001, IPL filed a request with the Indiana Utility Regulatory
Commission requesting permission to offer a one-time payment of $100 to any
residential customer whose service was interrupted for more than 48 hours as a
result of the storms. IPL's request was approved on September 5, 2001.
Anticipated payments should occur within 60 days and we estimate total payments
to be approximately $2.0 to $3.0 million.
Legal Proceedings
On July 25, 2001, the IURC issued an order commencing a formal investigation
regarding our ability to provide reasonable services to our customers. See
"--Regulatory Matters--Indiana Utility Regulatory Commission Filing."
IPL has been named as a defendant in approximately 25 lawsuits alleging personal
injury or wrongful death stemming from exposure to asbestos and asbestos
containing products formerly located in IPL power plants. IPL has been named as
a "premises defendant" in that IPL did not mine, manufacture, distribute or
install asbestos or asbestos containing products. These suits have been brought
on behalf of persons who worked for contractors or subcontractors hired by IPL.
Many of the primary defendants--the asbestos manufacturers--have filed for
bankruptcy protection, and it is expected that many of the remaining
manufacturers will also be forced into bankruptcy. IPL may have insurance
coverage for these claims; currently, these cases are being defended by counsel
retained by various insurers who wrote "occurrence" coverage policies applicable
to the period of time during which much of the exposure has been alleged.
Although we do not believe that any of the pending asbestos suits in which IPL
is a named defendant will have a material adverse effect on our business or
operations, we are unable to predict the number or effect any additional suits
may have, or the consequences to IPL of the bankruptcy of the asbestos
manufacturers; accordingly, we cannot assure you that any additional suits will
not have a material effect on our business or operations.
In addition to the foregoing, we are a defendant in various actions relating to
various aspects of our business. While it is impossible to predict the ultimate
disposition of any litigation, we do not believe that any of these lawsuits,
either individually or in the aggregate, will have a material adverse effect on
our financial condition, results of operations or liquidity.
Exhibit 10.10(2)
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement (this "Amendment") dated as of
November 13, 2001, by and among Indianapolis Power & Light Company, an Indiana
corporation with its principal place of business at One Monument Circle,
Indianapolis, Indiana 46204 ("Borrower"), each of the financial institutions
from time to time party to the below defined Loan Agreement (each a "Bank" and
collectively, the "Banks"), and ABN AMRO Bank N.V. in its capacity as
administrative agent for the Banks (in such capacity, the "Agent").
WITNESSETH THAT:
WHEREAS, the Borrower, the Banks and the Agent are party to that
certain Loan Agreement dated as of November 1, 2000, as amended by that certain
First Amendment to Loan Agreement dated as of October 31, 2001 (together with
all exhibits, schedules, attachments, appendices and amendments thereof, the
"Loan Agreement"); and
WHEREAS, National City Bank of Indiana has decided to become a Bank
under the Loan Agreement with a Commitment in the amount of $15,000,000.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrower, the Banks and the
Agent hereby agree as follows:
1. The definition of "Notes" appearing in Section 1.1 of the Loan Agreement
is hereby amended by inserting a reference to the "National City Note"
after the reference to the ABN AMRO Note.
2. The definition of "Moody's Rating" appearing in Section 1.1 of the Loan
Agreement is hereby amended in its entirety to be and to read as follows.
"Moody's Rating" means the rating assigned by Moody's
Investors Service, Inc. and any successor thereto that is a
nationally recognized rating agency to the outstanding senior
secured non-credit enhanced long-term indebtedness of the
Borrower (or, if neither Moody's Investors Service, Inc. nor
any successor shall be in the business of rating long-term
indebtedness, a nationally recognized rating agency in the
United States as mutually agreed between the Banks and
Borrower). Any reference in this Agreement to any specific
rating is a reference to such rating as currently defined by
Moody's Investors Service, Inc. (or such a successor) and
shall be deemed to refer to the equivalent rating if such
rating system changes.
3. The definition of "S&P Rating" appearing in Section 1.1 of the Loan
Agreement is hereby amended by changing the word "unsecured" appearing in
such Section to "secured".
4. The following definition is hereby inserted into Section 1.1 of the Loan
Agreement in proper alphabetical order:
"National City Note" means the Revolving Line of Credit
Promissory Note (Unsecured) in the amount of Fifteen Million
and no/100ths Dollars ($15,000,000.00) dated effective as of
November 13, 2001 executed by Borrower in favor of National
City Bank of Indiana substantially in the form (with
appropriate insertions) of Exhibit A attached to this
Agreement, and any replacement or substitute promissory note
issued by Borrower to National City Bank of Indiana pursuant
to this Agreement.
5. Section 8.5 of the Loan Agreement is hereby amended by deleting the notice
information for Union Planters Bank and inserting in its place the
following notice information for National City Bank of Indiana:
If to National City Bank of Indiana:
National City Bank of Indiana, Suite 200E
Indianapolis, IN 46255
Attention: Tracy J. Venable
Phone 317-267-7066
Fax 317-267-8899
6. The number "$15,000,000.00" appearing on the title page of the Loan
Agreement is hereby deleted and the number "$30,000,000.00" is hereby
substituted in its place.
7. The definition of "Aggregate Commitment" appearing in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and the following
definition is hereby substituted therefor:
"Aggregate Commitment" means Thirty Million and No/100
Dollars ($30,000,000.00), representing the aggregate
Commitments of the Banks."
8. On the effective date of this Amendment, National City Bank of Indiana
shall become a Bank under the Loan Agreement with a Commitment of
$15,000,000, and shall have all of the rights and obligations of a Bank
thereunder.
Except as expressly amended hereby, the Loan Agreement and all other
documents executed in connection therewith shall remain in full force and effect
in accordance with their respective terms. The Loan Agreement, as amended
hereby, and all rights and powers created thereby and thereunder or under such
other documents are in all respects ratified and confirmed. From and after the
date hereof, the Loan Agreement shall be deemed to be amended and modified as
herein provided, but, except as so amended and modified, the Loan Agreement
shall continue in full force and effect in accordance with its terms and the
Loan Agreement and this Amendment shall be read, taken and construed as one and
the same instrument. On and after the date hereof the term "Agreement" as used
in the Loan Agreement and all other references to the Loan Agreement in the Loan
Agreement, the other documents executed in connection therewith and/or herewith
or any other instrument, document or writing executed by the Borrower or any
other person or furnished to the Agent and/or the Banks by the Borrower, or any
other person in connection herewith or therewith, shall be deemed to be a
reference to the Loan Agreement as hereby amended.
On and as of the date hereof, the Borrower represents and warrants to
the Agent and the Banks that:
(i) Except for the litigation disclosed on Schedule II of the First
Amendment to Loan Agreement to the extent such litigation could have a
material adverse effect on the Borrower's financial condition,
properties, or operations, the representations and warranties
contained in this Amendment and the Loan Agreement are true and
correct in all material respects, in each case as though made on and
as of the date hereof, except to the extent such representations and
warranties relate solely to an earlier date (and then as of such
earlier date); and
(ii) Both before and after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing or would result from
the execution and delivery of this Amendment; and
(iii)The Borrower is, and will be, in full compliance with all of the
material terms, conditions and all other provisions of this Amendment
and the Financing Documents; and
(iv) This Amendment has been duly authorized, executed and delivered on its
behalf, and both the Loan Agreement, both before being amended and
supplemented hereby and as amended and supplemented hereby, and this
Amendment constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except to the
extent that a remedy or default may be determined by a court of
competent jurisdiction to constitute a penalty and except to the
extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
creditors' rights or by general principles of equity.
This Amendment shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
This Amendment may be signed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Amendment may also be executed by facsimile,
and each facsimile signature of a party hereto shall for all intents and
purposes be deemed an original signature of such party.
Except as otherwise specified herein, this Amendment embodies the
entire agreement and understanding between the Borrower and the Banks with
respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter.
This Amendment shall be binding upon and inure to the benefit of the
Agent and the Banks and their successors and assigns and the Borrower and its
permitted successors and assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:/s/ William H. Henley
-----------------------------------------
William H. Henley, President
NATIONAL CITY BANK OF INDIANA
By:/s/ Tracy J. Venable
-----------------------------------------
Name: Tracy J. Venable, VP
------------------------------------
ABN AMRO BANK N.V., in its capacity as Agent
By:/s/ Mark R. Lasek
-----------------------------------------
Name: Mark R. Lasek
Senior Vice President & Managing
Director
------------------------------------
By:/s/ Frank T.J. Van Deur
---------------------------------------
Name: Frank T.J. Van Deur
Assistant Vice President
------------------------------------
Dates Referenced Herein and Documents Incorporated by Reference
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