Exhibit 10.12
CREDIT AGREEMENT
BY AND AMONG
INDIANAPOLIS POWER & LIGHT COMPANY,
THE VARIOUS FINANCIAL INSTITUTIONS
PARTY HERETO,
THE FIRST NATIONAL BANK OF CHICAGO,
AS SYNDICATION AGENT,
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
AS DOCUMENTATION AGENT,
AND
ABN AMRO BANK N.V.,
AS ADMINISTRATIVE AGENT
DATED AS OF MAY 28, 1999
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.................................................7
Section 1.3. Other Terms......................................................7
ARTICLE II
AMOUNT AND TERMS OF THE LOANS................8
Section 2.1. Advances.........................................................8
(A) Amount...........................................................8
(B) Notice and Manner of Borrowing...................................8
(C) Interest.........................................................9
(D) Payments.........................................................9
(E) Maturity....................................................10
(F) Reduction or Termination of the Commitments.................10
Section 2.2. Notes...........................................................10
Section 2.3. Computation of Interest.........................................10
Section 2.4. Making of Payments and Prepayments,
Proration and Setoff...............................10
(A) Making of Payments and Prepayments..........................10
(B) Setoff......................................................11
(C) Proration of Payments.......................................11
(D) 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....................................................13
Section 2.9. Reimbursement of Costs..........................................14
Section 2.10. The Agents......................................................14
(A) Appointment, Powers and Immunities..........................14
(B) Reliance by Administrative Agent............................15
(C) Defaults....................................................15
(D) Rights as a Bank............................................15
(E) Indemnification.............................................16
(F) Non-Reliance on Agents and other Banks......................16
(G) Failure to Act..............................................16
(H) Resignation or Removal of Administrative
Agent..............................................16
Section 2.11. Conversion.....................................................17
Section 2.12. Increased Costs................................................17
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Section 2.13. Limitation on Types of Advances................................19
Section 2.14. Illegality.....................................................19
Section 2.15. Pro Rata Treatment.............................................20
Section 2.16. Funding Losses.................................................20
Section 2.17. Reference Banks................................................20
ARTICLE III
CONDITIONS OF LENDING...................20
Section 3.1. Conditions Precedent to all Advances............................20
Section 3.2. Conditions Precedent to Initial Advance.........................21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...............23
Section 4.1. Representations and Warranties of
Borrower...........................................23
(A) Organization and Existence..................................23
(B) Authorization and Absence of Defaults.......................23
(C) Acquisition of Consents.....................................24
(D) Validity and Enforceability.................................24
(E) Financial Information.......................................24
(F) No Litigation...............................................24
(G) Regulation U................................................25
(H) Absence of Adverse Agreements...............................25
(I) Taxes.......................................................25
(J) Accuracy of Representations and Warranties..................25
(K) Investment Company Act......................................26
(L) Solvency....................................................26
(M) Licenses, Registrations, and Compliance
with Laws..........................................26
(N) Principal Place of Business; Books and
Records............................................26
(O) Title to Assets and Properties..............................27
(P) Material Adverse Change.....................................27
(Q) Employee Benefit Plans......................................27
(R) Public Utility Holding Company Act..........................27
(S) Environmental Matters.......................................27
(T) Pari Passu Indebtedness.....................................29
(U) Year 2000...................................................29
ARTICLE V
COVENANTS OF BORROWER...........................29
Section 5.1. Affirmative Covenants of Borrower Other
Than Reporting Requirements................29
(A) Payment of Taxes............................................29
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(B) Preservation of Existence...................................30
(C) Compliance with Laws........................................30
(D) Visitation Rights...........................................30
(E) Keeping of Records and Books of Account.....................31
(F) Maintenance of Properties...................................31
(G) Other Documents.............................................31
(H) Environmental Liability.....................................31
(I) Additional Assurances.......................................32
(J) Purposes....................................................32
(K) ERISA Compliance............................................32
Section 5.2. Negative Covenants of Borrower..................................32
(A) Dissolution.................................................33
(B) Change in Nature of Business................................33
Section 5.3. Reporting Requirements..........................................33
ARTICLE VI
EVENTS OF DEFAULT..............................35
Section 6.1. Events of Default...............................................35
ARTICLE VII
REMEDIES OF BANKS............................37
ARTICLE VIII
MISCELLANEOUS................................37
Section 8.1. Consent to Jurisdiction and Service of
Process....................................37
Section 8.2. Rights and Remedies Cumulative..................................38
Section 8.3. Delay or Omission Not Waiver....................................38
Section 8.4. Amendments......................................................38
Section 8.5. Addresses for Notices...........................................39
Section 8.6. Costs, Expenses and Taxes.......................................39
Section 8.7. Participations..................................................40
Section 8.8. Binding Effect; Assignment......................................40
Section 8.9. Actual Knowledge................................................42
Section 8.10. Governing Law..................................................42
Section 8.11. Severability of Provisions.....................................42
Section 8.12. Headings.......................................................42
Section 8.13. Extension of the Commitment
Termination Date...........................42
Section 8.14. Counterparts...................................................42
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EXHIBITS
A. Form of Revolving Note
B. Form of Advance Request
C. Form of Opinion of Counsel
SCHEDULES
I. Banks and Commitments
II. Pricing Schedule
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 28, 1999, is by and among
INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana corporation ("Borrower"), the
undersigned financial institutions (together with their respective successors
and assigns, collectively the "Banks" and individually each a "Bank"), THE FIRST
NATIONAL BANK OF CHICAGO ("First Chicago"), as syndication agent (the
"Syndication Agent"), THE INDUSTRIAL BANK OF JAPAN, LIMITED, as documentation
agent (the "Documentation Agent"), and ABN AMRO BANK N.V. ("ABN"), as
administrative agent for the Banks (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
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WHEREAS, Borrower wishes, from time to time, to obtain loans in the
principal sum of up to One Hundred Fifty Million Dollars ($150,000,000), and
Banks are willing to make such loans to Borrower, on the terms and conditions
hereinafter set forth:
NOW, THEREFORE, the parties hereto 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" is defined in the first paragraph hereof.
"Administrative Agent" is defined in the first paragraph hereof.
"Advance" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Banks to Borrower pursuant to Section 2.1 hereof
at the same interest rate and for the same Interest Period.
"Advance Request" shall have the meaning set forth in Section 2.7 of this
Agreement.
"Agents" means the Administrative Agent, the Syndication Agent and the
Documentation Agent.
"Aggregate Commitment" means the aggregate of the Commitments of all of the
Banks, as reduced from time to time pursuant to the terms hereof.
3293678.4 32102 1341C 98469554
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"Agreement" means this Credit Agreement, as amended or otherwise modified
from time to time.
"Applicable Margin" - see the Pricing Schedule.
"Banks" or "Bank" has the meaning assigned in the first paragraph of this
Agreement.
"Base Rate" means the rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such
day, and (b) the Federal Funds Effective Rate in effect on such day plus
one-half (1/2) of one percent (1%) per annum. For purposes hereof, "Prime Rate"
means the rate of interest per annum publicly announced from time to time by ABN
as its prime commercial lending rate at its Chicago office; each change in the
Prime Rate shall be effective on the date such change is announced. The prime
rate is a reference rate and does not necessarily represent the lowest or best
rate charged to any customer by ABN.
"Base Rate Advance" means an Advance that bears interest at the Base Rate.
"Base Rate Loan" means a Loan that bears interest at the Base Rate.
"Borrower" has the meaning assigned in the first paragraph of this
Agreement.
"Business Day" means any day on which banks are open for business (other
than a Saturday or Sunday) in New York, New York, Chicago, Illinois and
Indianapolis, Indiana, and, if the transaction involves a LIBOR Advance, on
which dealings are carried on in the London eurodollar interbank market.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Closing Date" means the date on which all conditions precedent set forth
in Section 3.2 are satisfied or waived by all Banks.
"Commitment" means, for each Bank, its commitment to make Loans as set
forth in Article II hereof, as such commitment may be reduced from time to time
in accordance with the terms of this Agreement. The amount of the initial
Commitment of each Bank is set forth on Schedule I.
"Commitment Termination Date" means May 26, 2000 (as such date may be
extended pursuant to Section 8.13).
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"Default" means an event or condition which with the giving of notice or
lapse of time or both would become an Event of Default.
"Documentation Agent" is defined in the first paragraph hereof.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Environmental Laws" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules and regulations (including consent decrees and
administrative orders applicable to Borrower and its Subsidiaries) relating to
public health and safety and protection of the environment.
"ERISA" - see Section 5.1(K).
"Events of Default" has the meaning assigned to that term 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.
"Facility Fee Rate" - see the Pricing Schedule.
"Federal Funds Effective Rate" means, for any day, the weighted average of
the rates for 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 ABN from three Federal
funds brokers of recognized standing selected by it.
"FERC" means the Federal Energy Regulatory Commission and any successor
agency thereto.
"FERC Order" means the order issued by the FERC to Borrower dated July 29,
1998, Docket No. ES98-34-000, or an extension, renewal or replacement of such
order in form and substance satisfactory to the Banks.
"Financing Documents" means, collectively, this Agreement, the Notes, and
each other agreement, instrument or document now or hereafter executed in
connection herewith or therewith.
"First Chicago" is defined in the first paragraph hereof.
"FPA" means the Federal Power Act, as amended, and all rules and
regulations promulgated thereunder.
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"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America.
"Hazardous Materials" - see Section 5.1(H).
"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 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: (a) with respect to any LIBOR Advance, the one (1)
month, two (2) month, three (3) month or six (6) month period selected by
Borrower and commencing on the date of such Advance; and (b) with respect to any
Base Rate Advance, the period (not to exceed thirty (30) days) mutually agreed
to by the Banks and the Borrower and commencing on the date of such Advance. No
Interest Period may extend past the Maturity Date. Each Interest Period for a
LIBOR Advance that begins on the last day of a calendar month (or on a day for
which there is no numerically corresponding day in the appropriate subsequent
month) shall end on the last Business Day of the appropriate subsequent calendar
month. Each Interest Period for a LIBOR Advance which would otherwise end on a
day which is not a Business Day shall end on the immediately succeeding Business
Day (unless such immediately succeeding Business Day is in another calendar
month, in which case such Interest Period shall end on the immediately preceding
Business Day).
"IPALCO" means IPALCO Enterprises, Inc., an Indiana corporation.
"IPSCA" means the Indiana Public Service Commission Act, as amended, I.C.
ss. 8.1.2 et seq., and all rules and regulations promulgated thereunder.
"IURC" means the Indiana Utility Regulatory Commission and any successor
agency thereto.
"LIBOR Advance" means an Advance which bears interest at the LIBOR Rate.
"LIBOR Base Rate" means, with respect to any LIBOR Advance for any Interest
Period, the rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) equal to the rate per annum determined by the Administrative Agent to be
the average of the respective rates per
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annum at which Dollar deposits in immediately available funds are offered to
each of the Reference Banks two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market as at or about 10:00 a.m.
(New York time) for delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount approximately equal or
comparable to the amount of the LIBOR Loan of such Reference Bank for such
Interest Period.
"LIBOR Loan" means a Loan which bears interest at a LIBOR Rate.
"LIBOR Rate" means for each Interest Period for LIBOR Advances, the rate of
interest per annum (rounded upward, if necessary, to the next higher 1/16 of 1%)
determined by the following formula:
LIBOR Rate = LIBOR Base Rate
-----------------------------
1 - LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" means, with respect to any Interest Period, for
any LIBOR Advance, the maximum aggregate reserve requirement (including all
basis, supplemental, marginal and other reserves) which is imposed under
Regulation D on "Eurocurrency liabilities" as that term is defined in Regulation
D.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrances, lien (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.
"Loan" means, with respect to a Bank, such Bank's portion of any Advance.
"Maturity Date" means (i) if an order from the IURC, in form and substance
satisfactory to the Banks, has not been obtained permitting Borrower to have the
Indebtedness evidenced by the Loans mature more than 12 months of the date of
incurrence thereof pursuant to IPSCA ss.8- 1-2-78 (an "IURC Order"), May 26,
1999 and (ii) if an IURC Order has been obtained, one year after the Commitment
Termination Date.
"Notes" means the Revolving Notes of Borrower, dated the dates of the
Advances to which they relate, payable to the order of the respective Banks and
substantially in the form of Exhibit A, as the same may be amended or otherwise
modified from time to time.
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"Person" means any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, unincorporated organization,
association, 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).
"Pricing Schedule" - see Schedule II.
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended.
"Purchaser" - see Section 8.8(B).
"Reference Banks" means ABN and First Chicago.
"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 date hereof 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.
"Release" means a "release", as such term is defined in CERCLA.
"Reportable Event" means a "reportable event" as defined in Section 4043 of
ERISA.
"Required Banks" means Banks in the aggregate having at least 66-2/3% of
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Banks in the aggregate holding at least 66-2/3% of the aggregate unpaid
principal amount of the outstanding Advances.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"S&P" - see the Pricing Schedule.
"S&P Rating" - see the Pricing Schedule.
"Section" means, when followed by a number, the section or subsection of
this Agreement bearing that number.
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"Subsidiary" means, with respect to any Person, any corporation of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have not less than 50% of the ordinary voting
power for the election of directors. Unless the context otherwise requires, each
reference to Subsidiaries herein shall be a reference to Subsidiaries of
Borrower.
"Syndication Agent" is defined in the first paragraph hereof.
"Transferee" - see Section 8.8(D).
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. Advances.
(A) Amount. From time to time before the Commitment Termination Date,
each Bank severally agrees, subject to the terms and conditions of this
Agreement, including, but not limited to, the conditions precedent
contained in Section 3 hereof, to make Loans to Borrower, from time to
time, in amounts not to exceed in the aggregate at any one time
outstanding, the amount of its Commitment. In no event may the aggregate
principal amount of all outstanding Loans exceed the amount of the
Aggregate Commitment. Subject to the terms of this Agreement, Borrower may
borrow, repay and reborrow at any time prior to the Commitment Termination
Date. In accordance with the terms of this Agreement, at Borrower's option,
borrowings may be Base Rate Advances or LIBOR Advances or a combination
thereof in principal amounts of One Million Dollars ($1,000,000) or larger
integral multiples thereof, as more fully described in this Agreement.
(B) Notice and Manner of Borrowing. Borrower shall give the
Administrative Agent written notice, or facsimile notice (followed up with
written notice thereof), prior to 10:00 a.m., Chicago time, on the date of
borrowing for each Base Rate Advance, and prior to 10:00 a.m., Chicago
time, at least three Business Days prior to each LIBOR
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Advance, specifying the amount, the date and the type (Base Rate or
LIBOR) of the Advance, and, with respect to LIBOR Advances, the Interest
Period. Promptly after receipt of such notice, the Administrative Agent
shall advise each Bank thereof.
Not later than noon, Chicago time, on the date specified, each Bank
shall provide the Administrative Agent, at the Administrative Agent's
account specified in Section 2.4(A), with immediately available funds
covering such Bank's share of the Advance to be made and, subject to the
satisfaction of the conditions precedent set forth in Section 3 with
respect to such Advance, the Administrative Agent shall promptly make
available to Borrower such funds. Each borrowing shall be on a Business
Day.
Absent contrary notice from Borrower by 10:00 a.m., Chicago time, one
Business Day prior to the last day of the Interest Period of an Advance,
Borrower shall be deemed to have given the Administrative Agent notice at
such time pursuant to this Section 2.1(B) to the effect that Borrower
requests that the Banks make Loans to Borrower on such date at the Base
Rate in an aggregate principal amount equal to the aggregate principal
amount of the Loans 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:
(1) Base Rate Advances shall bear interest at the Base Rate; and
(2) LIBOR Advances shall bear interest at the LIBOR Rate applicable
to each Interest Period for such Advance plus the Applicable
Margin in effect for each day during the relevant period;
provided, however, that during the continuance of any Default or Event of
Default, each Advance shall bear interest at a rate per annum equal to the
Base Rate from time to time in effect plus 2%.
Borrower shall pay such interest in arrears on the balance of the
Loans outstanding from time to time in accordance with the terms and
conditions of the Notes.
(D) Payments. Payments of interest on the Loans shall be payable in
arrears commencing (1) with respect to Interest Periods of three months or
less, on the last day of the Interest Period, and (2) with respect to
Interest Periods longer than three months, on each three-month anniversary
of the first day of such Interest Period, on the last day of such Interest
Period and on the Maturity Date.
Payments of principal on each Advance shall be payable on the last day
of the applicable Interest Period, subject, however, to Borrower's right to
reborrow, from time to time, during the term of this Agreement, in
accordance with the terms and conditions of this Agreement.
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Base Rate Advances may be prepaid in full or in part (if in part, in
the amount of $1,000,000 or a larger integral multiple thereof) at any time
upon two Business Days' notice to the Banks. LIBOR Advances may be prepaid
in full or in part (if in part, in the amount of $1,000,000 or a larger
integral multiple thereof) as follows:
(1) On the last day of an Interest Period for the Advance, upon
four prior Business Days' notice to the Banks; or
(2) On any other Business Day, upon four prior Business Days'
notice to the Banks, and provided Borrower shall pay to the
Administrative Agent, on demand, the amounts specified by Section
2.16.
(E) Maturity. If not sooner paid or accelerated pursuant to the terms
of this Agreement, the balance of the unpaid principal amount of, and all
accrued and unpaid interest on, the Loans shall be due and payable on the
Maturity Date.
(F) Reduction or Termination of the Commitments. Borrower may from
time to time on at least three Business Days' prior written notice received
by the Administrative Agent (which shall promptly advise each Bank thereof)
permanently reduce the amount of the Aggregate Commitment to an amount not
less than the aggregate unpaid principal amount of the Loans. Any such
reduction shall be in an amount of at least $5,000,000 or in a larger
integral multiple of $1,000,000 and shall be pro rata among the Banks.
Borrower may at any time on like notice terminate the Commitments upon
payment in full of all Loans and all other obligations of Borrower
hereunder and under the Notes.
Section 2.2. Notes. Each Loan of each Bank shall be evidenced by a Note.
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 year of 365 or 366 days, as the case may be, on Base Rate Advances,
and on the basis of a 360-day year on LIBOR Advances.
Section 2.4. Making of Payments and Prepayments, Proration and Setoff.
(A) Making of Payments and Prepayments. Except as set forth below, 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 the Administrative Agent at the Administrative Agent's account at
ABN Amro Bank N.V., New York Branch, Swift No. ABNAUS33, ABA #026009580,
Credit to: ABN Amro Bank N.V., Account No. 651001011142, Reference:
Indianapolis Power & Light Company, or such other account as the
Administrative Agent may notify Borrower, in Dollars and in immediately
available funds prior to 1:00 p.m., Chicago time, on the date due. The
Administrative Agent shall promptly remit to each Bank its share of all
such
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payments received in collected funds by the Administrative Agent for the
account of such Bank. Borrower hereby irrevocably authorizes the Banks, 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 the Banks an amount equal to the
amount thereof not paid when due. Any such payment or prepayment which is
received by the Administrative Agent in Dollars and in immediately
available funds after 1:00 p.m., Chicago time, 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 an
Event of Default has occurred, any such payment or prepayment if received
by the Administrative Agent prior to the close of the Administrative
Agent's business on a Business Day shall be deemed received on such
Business Day.
All payments under Section 2.12 and (to the extent they relate to a
Regulatory Change) Section 2.8 shall be made directly to the affected Bank.
(B) Setoff. Upon the occurrence of any Event of Default (including any
applicable cure period) and during the continuance of any Event of Default,
each of the Banks is hereby authorized at any time and from time to time,
without notice to Borrower (any such notice being expressly waived by
Borrower), to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by each of the Banks 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 and 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. Each Bank
exercising such right of setoff and application agrees 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 the Banks under this Section 2.4(B) are in
addition to all other rights and remedies (including, without limitation,
other rights of setoff) which the Banks may have.
(C) Proration of Payments. If any Bank, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments
received pursuant to Section 2.12 or (to the extent relating to
compensation for Regulatory Changes) Section 2.8) in a greater proportion
than that received by any other Bank, such Bank agrees, promptly upon
demand, to purchase such participations in the Loans held by the other
Banks so that after such purchase the purchasing Bank shall share such
excess payment ratably with each of them. If any Bank, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for Borrower's
obligations to such Bank hereunder, such Bank agrees, promptly upon demand,
to take such action necessary such that all Banks share in the benefits of
such collateral ratably in proportion to their Loans. In case any such
payment is disturbed by legal process or otherwise, appropriate further
adjustments shall be made.
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(D) 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
solely to provide liquidity support for its: (i) $40,000,000 City of Petersburg,
Indiana, Pollution Control Refunding Revenue Bonds, Series 1991; (ii)
$20,000,000 City of Petersburg, Indiana, Solid Waste Disposal Revenue Bonds,
Adjustable Rate Tender Securities (ARTS), Series 1994A; (iii) $40,000,000 City
of Petersburg, Indiana, Pollution Control Refunding Revenue Bonds, Adjustable
Rate Tender Securities (ARTS), Series 1995B; (iv) $30,000,000 City of
Petersburg, Indiana, Solid Waste Disposal Revenue Bonds, Adjustable Rate Tender
Securities (ARTS), Series 1995C; and (v) $20,000,000 City of Petersburg,
Indiana, Solid Waste Disposal Revenue Bonds, Adjustable Rate Tender Securities
(ARTS), Series 1996.
Section 2.7. Loan Advancements and Payments. The Banks shall make Advances
as requested by Borrower and in accordance with the following notice procedures.
Each Bank's portion of the Advance shall be in the proportion which its
Commitment bears to the Aggregate Commitment. Borrower shall give the
Administrative Agent a written request and notice for any Advance in the form of
Exhibit B (an "Advance Request") in accordance with the terms of Section 2.1(B)
and shall specify the date, type, Interest Period and amount of such Advance and
shall otherwise be in such form as the Administrative Agent may require from
time to time. The Administrative Agent shall give the Banks at least three
Business Days' notice of each LIBOR Advance requested by Borrower, and notice of
each Base Rate Advance requested by Borrower.
Section 2.8. Facility Fee. Borrower shall pay to the Banks a facility fee
in an amount equal to the Facility Fee Rate of the Aggregate Commitment
(regardless of usage). Such fee shall accrue from the date hereof, shall be
payable quarterly in arrears and on the Maturity Date (or (x) if no Advances are
outstanding on the Commitment Termination Date, on the Commitment Termination
Date and (y) if any Advances are outstanding on the Commitment Termination Date,
but are paid in full on a date earlier than the date which is one year after the
Commitment Termination Date, then on the date of such payment in full), and
shall be computed for the number of actual days elapsed in a 360-day year, with
each Bank receiving a pro rata portion of such fee based on the proportion which
its Commitment bears to the Aggregate Commitment. Notwithstanding the foregoing,
in no event shall Borrower be liable to the Banks
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for a facility fee for any period after the Commitment Termination Date during
which the Borrower has no Advances outstanding.
If, as a result of any Regulatory Change, the amount of capital required or
expected to be maintained by any Bank is increased by or based upon the
existence of its Commitment and other commitments of similar type, then, and in
any such case:
(A) The Administrative Agent shall promptly notify Borrower of the
happening of the above described event; and
(B) Borrower shall pay to such Bank on demand as additional
compensation, such amount as will compensate the Bank in the light of such
circumstances, to the extent that the Bank reasonably determines such
increase in capital to be allocable to the existence of the Bank's
Commitment or the making or maintaining of the Loans hereunder; provided,
that Borrower may, not later than thirty (30) days after Borrower's receipt
of such notice from the Bank, replace such Bank as a party to this
Agreement with one or more banks or financial institutions reasonably
acceptable to the Administrative Agent. Upon notice from Borrower to any
Bank referred to in the proviso to the immediately preceding sentence, such
Bank shall assign its Loans, Note and Commitment to such replacement banks
or other financial institutions for a purchase price equal to the principal
amount of the Loans so assigned, all accrued and unpaid interest thereon
and its ratable share of all fees to which it is entitled, pursuant to a
form of assignment acceptable to such Bank and such assignee(s). Any such
assignment shall have the effects specified in Section 8.8(C).
A certificate as to the additional compensation believed to be owing to the
Banks from any Regulatory Change shall be submitted by the Administrative Agent
to Borrower along with its notification under subsection (A) above. In
determining the additional compensation hereunder, the Banks may use any
reasonable averaging and attribution methods. In the absence of manifest error,
the certificate shall be conclusive as to the amount shown thereon if determined
on a reasonable basis.
The additional compensation shall be payable in arrears in quarterly
installments on the last Business Day of each March, June, September, and
December, commencing on the last day of such quarter following a Regulatory
Change. The additional compensation shall be calculated for the actual number of
days elapsed on the basis of a year of 360 days.
Section 2.9. Reimbursement of Costs. Borrower agrees to reimburse the Banks
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 the Administrative Agent
and the Banks in connection with the Loans made hereunder.
Section 2.10. The Agents. This Section 2.10 specifies rights and
obligations among and between the Banks and the Agents. Borrower acknowledges
the existence of limitations in
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Agents' authority but shall be entitled to rely upon the authority of the Agents
as conferred by this Section and otherwise specified in this Agreement.
(A) Appointment, Powers and Immunities. Each Bank hereby appoints and
authorizes the Administrative Agent to act as its agent hereunder and under
the Notes to receive payments made in respect of the Notes and to have such
powers as are specifically delegated to the Administrative Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement;
neither the Syndication Agent nor the Documentation Agent shall have any
rights or duties in its capacity as such; and no Agent shall by reason of
this Agreement be a trustee or fiduciary for any Bank. No Agent nor any of
their respective directors, officers, agents or employees shall be
responsible for any recitals, statements, representations or warranties
contained in this Agreement, or received by any of them under 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 Administrative 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. No Agent nor any of their respective 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.
(B) Reliance by Administrative Agent. The Administrative 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 Administrative Agent.
As to any matters not expressly provided for by this Agreement, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by
the Required Banks, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the Banks.
(C) Defaults. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than
the non- payment of principal of or interest on the Notes or any other
amount payable hereunder) unless the Administrative Agent has received
written notice or other written documentation from a Bank or from Borrower
indicating that a Default or an Event of Default has occurred. In the event
that the Administrative Agent received such a notice of the occurrence of a
Default or an Event of Default, the Administrative Agent shall give
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prompt notice thereof to the Banks (and shall give each Bank prompt notice
of each such non-payment). The Administrative Agent shall (subject to
subsection (G) hereof) take such action with respect to such Default or
Event of Default as shall be directed by the Required Banks.
(D) Rights as a Bank. With respect to the Financing Documents, ABN 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 Administrative 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 Administrative Agent, and ABN 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.
(E) Indemnification. Each Bank agrees to indemnify the Agents and
their respective directors, officers, agents and employees (to the extent
not reimbursed by Borrower) ratably in the proportion its Commitment bears
to the Aggregate Commitment 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 the Agents 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 the
applicable Agent.
(F) Non-Reliance on Agents and other Banks. Each Bank agrees that it
has, independently and without reliance on the Agents 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
the Agents 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 and the
other Financing Documents. The Administrative 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 requested in writing by the Required Banks.
(G) Failure to Act. Except for action expressly required of the
Administrative Agent hereunder, the Administrative 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.
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(H) Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and Borrower, and the Administrative Agent may be
removed at any time with or without cause by the Required Banks. Upon such
resignation or removal, the Required Banks shall have the right to appoint
a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Banks or such successor shall
not have accepted such appointment within thirty (30) days after the
retiring Administrative Agent's giving of notice of resignation or after
the removal of the Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative
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
Dollars ($100,000,000.00). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations as Administrative Agent
hereunder and under the other Financing Documents. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Section 2.10 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 Administrative Agent.
Section 2.11. Conversion. Provided that no Event of Default or Default
shall have occurred, Borrower may, upon three Business Days' notice to the Banks
and prior to 10:00 a.m., Chicago time, on such date, convert all or part of any
Advance from one interest rate option to another as follows:
(A) From a Base Rate Advance to a LIBOR Advance at any time; or
(B) From a LIBOR Advance to a Base Rate Advance on the last day of the
Interest Period related thereto.
Any such conversion hereunder shall be subject to the provisions of Section 2.16
hereof. A notice converting an Advance to a LIBOR Advance shall specify the
Interest Period. Promptly upon receipt of a notice of conversion from Borrower,
the Administrative Agent shall advise each Bank thereof.
Section 2.12. Increased Costs.
(A) With respect to any outstanding Indebtedness of Borrower, if any
Regulatory Change shall:
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(1) subject any Bank to any tax with respect to that Advance (other
than a tax on or measured by such Bank's net income);
(2) 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 Advance;
(3) 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 Advance; or
(4) impose any condition on any Bank with respect to that Advance;
and the result is to increase the cost to such Bank of making or maintaining
that Advance or to reduce the amount receivable by such Bank with respect to
that Advance, in either event by an amount which such Bank reasonably deems
material, then, and in any such case:
(5) the Administrative Agent shall promptly notify Borrower of the
happening of the above-described event; and
(6) Borrower shall pay to such Bank on demand as additional interest
such amount as will compensate the Bank for the additional cost or
reduction, calculated from the date of notification by the Administrative
Agent, and may, at its option, within seven Business Days after receipt of
the Administrative Agent's notification, (1) notify such Bank in accordance
with Section 2.1(D) of its intent to prepay the affected Loan, and
thereafter prepay such Loan in accordance with Section 2.1(D) (subject to
Section 2.16), or (2) notify such Bank in accordance with Section 2.11 of
its intent to convert the affected Advance to another interest rate option
unaffected by the Regulatory Change.
(B) If any Bank shall reasonably determine that the adoption or phase-in of
any applicable law, rule or regulation regarding capital adequacy, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank or any Person controlling such Bank with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's or such controlling
Person's capital as a consequence of such Bank's obligations hereunder
(including, without limitation, such Bank's Commitment) to a level below that
which such Bank or such controlling Person could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's or such
controlling Person's policies with respect to capital adequacy) by an amount
deemed by such Bank or such controlling Person to be material, then such Bank
shall promptly notify the Administrative Agent and the Borrower of such
determination and, from time to time, upon demand by such Bank (which demand
shall be accompanied by a statement setting forth the basis of such demand, a
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copy of which shall be furnished to the Administrative Agent), Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
or such controlling Person for such reduction.
(C) A certificate as to the increased cost or reduced amount resulting to
any Bank from any Regulatory Change as described above shall be submitted by the
Administrative Agent to Borrower along with its notification under subsection
(A)(5) or subsection (B) above. In the absence of manifest error, any such
certificate shall be conclusive as to the amount shown thereon if determined on
a reasonable basis.
Section 2.13. Limitation on Types of Advances. If, on or prior to the
determination of any interest rate for any LIBOR Advance for any Interest
Period, any Bank reasonably and in good faith determines that deposits in
Dollars comparable to the amount and for the Interest Period of that Advance are
not available in the London interbank eurodollar market, or that, by reason of
circumstances affecting the London interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the interest rate applicable to
that Interest Period, or that the making or funding of LIBOR Advances has become
impracticable, the Administrative Agent shall give Borrower prompt notice
thereof, and so long as that condition remains in effect, such Bank shall be
under no obligation to make, or to convert other Advances into, Advances of the
type affected, and Borrower shall, on the later of (a) the last day of the then
current Interest Period for the affected Advance, or (b) seven Business Days
after receipt of the Administrative Agent's notice, either notify such Bank and
thereafter prepay the Advance in accordance with Section 2.1(D), or notify such
Bank and thereafter convert the Advance into another type or types of Advance(s)
in accordance with Section 2.11 (subject, in either case, to Section 2.16).
Section 2.14. Illegality. In the event that it becomes unlawful for any
Bank to (a) honor its obligations to make any LIBOR Advance, or (b) maintain any
LIBOR Advance, such Bank shall promptly notify Borrower thereof (with a copy to
the Administrative Agent) and such Bank's obligation to make the affected type
of Advance and to convert other types of Advances into that type of Advance
shall be suspended until such time as such Bank may again legally make and
maintain the affected type of Advance, and Borrower shall, on the last day of
the then current Interest Period for that Advance (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 thereafter prepay the Advance in accordance with Section 2.1(D), or
notify such Bank and thereafter convert the Advance into another type or types
of Advance(s) in accordance with Section 2.11 (subject, in either case, to
Section 2.16).
Section 2.15. Pro Rata Treatment. All borrowings, conversions and
repayments shall be effected so that after giving effect thereto each Bank will
have a pro rata share (according to the proportion its Commitment bears to the
Aggregate Commitment) of all Advances.
Section 2.16. Funding Losses. Borrower hereby agrees that upon demand by
any Bank (which demand shall be accompanied by a statement setting forth the
basis for the calculations of the amount being claimed, a copy of which shall be
furnished to the Administrative Agent)
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Borrower will indemnify such Bank against any net loss or expense which such
Bank may sustain or incur (including, without limitation, any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain any LIBOR Loan), as
reasonably determined by such Bank, as a result of (a) any payment or prepayment
or conversion of any LIBOR Loan of such Bank on a date other than the last day
of an Interest Period therefor or (b) any failure of Borrower to borrow or
convert any Loans on a date specified therefor in an Advance Request or in a
notice of conversion pursuant to Section 2.11 (other than as a result of a
default by such Bank or the Administrative Agent). For this purpose, all notices
to the Administrative Agent pursuant to this Agreement shall be deemed to be
irrevocable.
Section 2.17. Reference Banks. Each Reference Bank agrees to use its best
efforts to furnish LIBOR quotations to the Administrative Agent as contemplated
by the definition of "LIBOR Base Rate".
ARTICLE III
CONDITIONS OF LENDING
Section 3.1. Conditions Precedent to all Advances. Unless the Required
Banks otherwise consent in writing, the obligation of the Banks to make any
Advance 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 Advance shall be satisfactory to counsel for the
Banks 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 Borrower contained in
Section 4.1 of this Agreement are true and accurate.
(C) No Default or Event of Default shall then be in existence or would
be created thereby.
(D) The FERC Order shall not have expired or been revoked and shall
permit the issuance of Notes to evidence such Advance.
(E) The aggregate amount of all unsecured promissory notes issued by
Borrower having maturities of twelve months or less from the date of
issuance, after giving effect to such Advance and the issuance of the
related Notes, shall be not greater than $500,000,000 (or such lesser
maximum amount as may then be authorized under the FERC Order) and Borrower
shall have delivered to the Administrative Agent and the Banks a
certificate to that effect.
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(F) Borrower shall have executed and delivered to each Bank a Note in
the principal amount of such Bank's Loan being made as a part of such
Advance.
(G) The Administrative Agent and Banks shall have received an opinion
of counsel (which may be in-house counsel to Borrower) in form and
substance satisfactory to the Administrative Agent as to the due
authorization, execution and delivery of the Notes delivered pursuant to
Section 3.1(F) with respect to such Advance and that such Notes are
Borrower's legal, valid and binding obligations.
Section 3.2. Conditions Precedent to Initial Advance. The obligation of the
Banks to make the initial Advance is subject to the receipt by the Banks 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 the Banks and each to be in
the form and substance approved by the Banks on the date on which this Agreement
is executed and delivered by Borrower and the Banks:
(A) A favorable opinion of Bryan G. Tabler, Senior Vice President,
Secretary and General Counsel of Borrower, substantially in the form of
Exhibit C attached hereto.
(B) A certified copy of the FERC Order authorizing the Borrower to
incur the Indebtedness contemplated by the Financing Documents.
(C) 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.
(D) Payment to the Administrative Agent and the Banks of the fees
specified in this Agreement as being payable on the Closing Date and the
legal fees of the Administrative Agent and the Banks, and other expenses.
(E) Evidence required by the Administrative Agent and the 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 Borrower, fully enforceable in accordance
with their respective terms under applicable law. Such evidence shall
include, without limitation, the opinion of counsel referenced in Section
3.2(A) hereof, resolutions of the board of directors of Borrower and a
certificate of the Secretary of Borrower certifying the same.
(F) Certified copies of Borrower's Articles of Incorporation and
By-Laws, each as amended to date.
(G) A written certificate of the Secretary of 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.
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(H) Evidence that Borrower has terminated the "Commitments" under, and
paid in full all Indebtedness outstanding under, the Credit Agreement dated
as of December 20, 1996 among Borrower, various financial institutions and
ABN Amro Bank, N.V., Chicago Branch, as administrative agent.
(I) Such other information about Borrower and/or its assets, business
and/or financial condition as the Administrative Agent or the Banks may
reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Borrower. Borrower
represents and warrants to the Administrative Agent and the 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 Indiana 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 to
the Administrative Agent and the Banks 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 or its Subsidiaries and/or the Articles of
Incorporation or By-Laws, where applicable, of Borrower and its
Subsidiaries, (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 or any of its Subsidiaries
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 and its Subsidiaries or (iv) result in,
or require, the creation or imposition of any Lien on any of the properties
or revenues of Borrower and its Subsidiaries. Borrower and each Subsidiary
is in compliance with any such law described in clause (ii) above, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or any such indenture, agreement,
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lease or instrument, except where the failure to be in compliance is
immaterial to the financial condition or business of Borrower and its
Subsidiaries.
(C) Acquisition of Consents. No authorization, consent, approval,
license or exemption of, or filing or registration with, any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including without limitation any
authorization, consent, approval, license or exemption of, or filing with,
the FERC, the IURC and any other regulatory authority having jurisdiction)
is or will be necessary to the valid execution and delivery to the
Administrative Agent and the Banks or performance by Borrower of any
Financing Document, other than those already obtained and copies of which
have been provided to the Administrative Agent and the Banks pursuant to
Section 3.2(B) hereof.
(D) Validity and Enforceability. This Agreement is, and each of the
other Financing Documents when delivered hereunder will be, the legal,
valid and binding obligation of Borrower enforceable against Borrower in
accordance with its terms, except to the extent enforceability thereof is
limited by bankruptcy, insolvency or other laws affecting the enforcement
of creditors' rights generally, and by general principles of equity.
(E) Financial Information. All financial statements and other
financial data which have been or will be furnished to the Administrative
Agent or the Banks by Borrower are, and will be, true and correct and
reflect, or will reflect when delivered in the future, fairly the financial
condition of Borrower and its Subsidiaries and have been, or will be,
prepared in accordance with GAAP consistently applied except for changes as
required by GAAP. Borrower and its Subsidiaries have 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 and its Subsidiaries 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,
its Subsidiaries or any of its or their properties before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which if determined adversely to
Borrower or any Subsidiary 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 and its Subsidiaries.
(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
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221), does not own and has no present intention of acquiring any such
margin stock. 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 stock or for any other
purpose which might constitute the transaction contemplated hereby a
"purpose credit" within the meaning of said Regulation U, or cause this
Agreement to violate any other regulation of the Board of Governors of the
Federal Reserve System or the Securities Exchange Act of 1934, as amended,
or any rules or regulations promulgated under said regulations or 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 and its Subsidiaries have 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 in accordance with GAAP.
(J) 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.
(K) Investment Company Act. 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.
(L) Solvency. After giving effect to the consummation of the Loans 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
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the execution and delivery of this Agreement and the consummation or
performance of any transactions contemplated herein.
(M) Licenses, Registrations, and Compliance with Laws. To the best of
Borrower's knowledge, each of Borrower and its Subsidiaries has all
permits, governmental licenses, registrations, and approvals material to
carrying out its businesses as presently conducted and as required by law
(including, without limitation, the FPA and the IPSCA) 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 or its Subsidiaries,
including, but not limited to, the FERC, the IURC, 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 or any Subsidiary 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.
(N) Principal Place of Business; Books and Records. Borrower's chief
executive office is located at Borrower's address set forth beneath its
signature hereto. All of Borrower's books and records are kept at such
address.
(O) 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 hereafter
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.
(P) 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 December 31, 1998
provided to Banks up to and including the Closing Date.
(Q) Employee Benefit Plans. Each employee benefit plan as to which
Borrower or any Subsidiary may have any liability complies in all material
respects with all applicable requirements of law and regulations, and (i)
to the best of Borrower's knowledge, no Reportable Event has occurred with
respect to any such plan, (ii) neither Borrower nor any Subsidiary has
withdrawn from any such plan and (iii) no such plan has been terminated.
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(R) Public Utility Holding Company Act. Borrower is a wholly-owned
direct subsidiary of IPALCO. IPALCO is a "holding company", as such term is
defined in PUHCA, and, by virtue of its relationship with IPALCO, Borrower
is a "subsidiary company" of a "holding company" within the meaning of
PUHCA, but IPALCO and its Subsidiaries are exempt from all provisions of
PUHCA and all rules thereunder, except Section 9(a)(2) thereof, by virtue
of having duly filed with the Securities and Exchange Commission one or
more exemption statements pursuant to Section 3(a)(1) of PUHCA and pursuant
to Rule 2 of the Securities and Exchange Commission and, to the best of
Borrower's knowledge, no proceedings to revoke or modify such exemption
have been instituted or are pending. Neither Borrower or any Subsidiary is
a "holding company" or, other than by virtue of its relationship with
IPALCO as set forth in the two immediately preceding sentences, a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the
meaning of PUHCA.
(S) Environmental Matters. To the best of Borrower's knowledge:
(1) all facilities and property (including underlying
groundwater) owned or leased by Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by Borrower and its
Subsidiaries in material compliance with all Environmental Laws;
(2) there have been no past, and there are no pending or
threatened
(i) claims, complaints, notices or requests for information
received by Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law which,
individually or in the aggregate, have, or are reasonably
expected to have, a material adverse effect on the condition,
financial or otherwise, of Borrower and its Subsidiaries, or
(ii) complaints, notices or inquiries to the Company or any
of its Subsidiaries regarding potential liability under any
Environmental Law which, individually or in the aggregate, have,
or are reasonably expected to have, a material adverse effect on
the condition, financial or otherwise, of Borrower and its
Subsidiaries;
(3) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by Borrower or
any of its Subsidiaries that, singly or in the aggregate, have had, or
may reasonably be expected to have, a material adverse effect on the
condition, financial or otherwise, of Borrower and its Subsidiaries;
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(4) Borrower and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental matters
and necessary or desirable for their businesses;
(5) no property now or previously owned or leased by Borrower or
any of its Subsidiaries is listed or (with respect to owned property
only) proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up; and
(6) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by Borrower or any of its Subsidiaries
that, singly or in the aggregate, have had, or may reasonably be
expected to have, a material adverse effect on the condition,
financial or otherwise, of Borrower and its Subsidiaries.
(T) Pari Passu Indebtedness. The Indebtedness under the Financing
Documents ranks at least pari passu with all other unsecured Indebtedness
of the Borrower.
(U) Year 2000. Borrower and its Subsidiaries have reviewed the areas
within their business and operations which could be adversely affected by,
and have developed or are developing a program to address on a timely
basis, the "Year 2000 Problem" (that is, the risk that computer
applications used by Borrower and its Subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving certain
dates prior to and any date after December 31, 1999), and have made related
appropriate inquiry of material suppliers and vendors. Based on such review
and program, Borrower believes that the "Year 2000 Problem" will not have a
material adverse effect on (i) the business, assets, operations, prospects
or financial or other condition of Borrower and its Subsidiaries or (ii)
the ability of Borrower to perform its obligations under the Financing
Documents.
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 any Loans are
outstanding or Borrower is indebted to the Banks under any of the Financing
Documents and until all Commitments are terminated, Borrower shall ensure that
it shall, and shall cause each of its Subsidiaries to, unless the Required Banks
shall otherwise consent in writing:
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(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 and its Subsidiaries 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 reserves or other provisions have 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 Borrower's reasonable business judgment, desirable in view of its
business and operations and ownership of properties.
(C) Compliance with Laws. Comply with the requirements of all present
and future applicable laws (including, without limitation, the FPA and the
IPSCA), 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 and its
Subsidiaries.
(D) Visitation Rights.
(i) Permit, at any reasonable time and from time to time, the
Banks or any agents or representatives thereof (including without
limitation the Administrative Agent), to examine and make copies of
and abstracts from the records and books of account of, and visit the
properties of Borrower and its Subsidiaries, to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries 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 Advance is outstanding or any Commitment exists, the Banks or
any agents or representatives thereof (including without limitation
the Administrative Agent), to enter the properties of Borrower and its
Subsidiaries 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
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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 or the applicable
Subsidiary.
(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 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. (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 the Administrative Agent, the Banks, their employees, agents,
officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses
(including, without limitation, reasonable 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 under any Environmental Law (any such
materials, pollutants, wastes, and substances being herein
collectively referred to as "Hazardous Materials"), (b) the violation
of any Environmental Law 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.
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(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
the Administrative Agent or the Banks shall reasonably request for the
purpose of implementing or effectuating the provisions of the
Financing Documents and, upon the exercise by the Administrative Agent
or the Banks 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 the
Administrative Agent or the Banks may be so required to obtain.
Without limiting the generality of the foregoing, the Borrower will
give all necessary notices to, make all necessary filings with, and
obtain all necessary authorizations and approvals of, the FERC and the
IURC with respect to the transactions contemplated by the Financing
Documents.
(J) Purposes. Use the proceeds of the Loans solely for the
purposes herein described.
(K) ERISA Compliance. Fulfill its obligations under minimum
funding standards of the Employee 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 IV of ERISA and Borrower and
each Subsidiary 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 Loans is outstanding or Borrower is
indebted to the Banks under any of the Financing Documents and until all
Commitments have been terminated, Borrower shall not, and shall not permit any
of its Subsidiaries to, without the prior written consent of the Required Banks:
(A) Dissolution. Dissolve, liquidate, wind up, merge or consolidate
with another Person; provided, however (i) Borrower may merge with another
Person if upon the completion of such merger, Borrower is the surviving
entity, (ii) any Subsidiary may be merged into the Borrower or a wholly
owned Subsidiary and (iii) the Borrower may dissolve immaterial
Subsidiaries (a Subsidiary being deemed "immaterial" for this purpose if it
has less than 2% of the assets of Borrower and its consolidated
Subsidiaries).
(B) Change in Nature of Business. Make any material change in the
nature of its business.
Section 5.3. Reporting Requirements. From the date hereof and thereafter
for so long as any portion of a Commitment is outstanding or Borrower is
indebted to the Banks under any of
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the Financing Documents, Borrower shall, unless the Required Banks shall
otherwise consent in writing, furnish or cause to be furnished to the Banks:
(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 one hundred twenty (120) 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 the Banks;
(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 10-Q which is filed with the Securities and Exchange
Commission as signed by the Chief Financial Officer of Borrower;
(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) 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 or any Subsidiary;
(F) such other information respecting the business, properties, or the
condition or operations, financial or otherwise, of Borrower and its
Subsidiaries as the Administrative Agent or the Banks may, from time to
time, reasonably request;
(G) prompt written notice of any material adverse change in Borrower's
or any Subsidiary's condition, financial or otherwise, and an explanation
thereof and of the actions Borrower proposes to take with respect thereto;
(H) immediately, copies of any and all notices, correspondence,
warnings, guidance or other written materials specifically directed at
Borrower or any Subsidiary which have a material impact on Borrower's
ability to carry out its businesses as
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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 or any Subsidiary, the substances contained therein, or
the equipment or operations of Borrower or any Subsidiary in connection
therewith; and
(I) promptly and in any event within five (5) days thereafter, written
notice of any change in the name of Borrower.
All statements of financial performance and compliance certificates
required to be provided on or prior to April 30, 2000 by Borrower and/or
its Subsidiaries to the Administrative Agent and the Banks herein shall (i)
include a statement that the Year 2000 remediation efforts of Borrower and
its Subsidiaries are proceeding as scheduled and (ii) indicate whether an
auditor, regulator, or third party consultant has issued a management
letter or other communication regarding the Year 2000 exposure, program or
progress of Borrower and/or its Subsidiaries.
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 Notes and/or
in this Agreement within ten (10) days of the date 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),(i) if Borrower
shall be the subject of a bankruptcy proceeding, or (ii) if any proceeding
against it seeking any
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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), 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) 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 the Administrative Agent and the Banks pursuant to this
Agreement or in any other Financing Document 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 the 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
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(I) with respect to any employee benefit plan as to which Borrower or
any Subsidiary may have any liability, there shall exist a deficiency of
more than $1,000,000 in the plan assets available to satisfy the benefits
guaranteeable under ERISA with respect to such plan, or such plan is
terminated or Borrower or any Subsidiary withdraws from such plan, but only
if, in the case of any withdrawal or termination, such withdrawal or
termination is reasonably likely to have a material adverse effect upon the
condition, financial or otherwise, of Borrower and its Subsidiaries; or
(J) if IPALCO shall fail at any time to own, directly or indirectly,
all of the issued and outstanding capital stock of Borrower, free and clear
of any Lien; or
(K) if this Agreement or any other Financing Document shall be
nullified or shall cease to be in full force and effect; or
(L) if the S&P Rating shall be BB+ or lower or the long-term debt
securities of IPL shall be unrated by S&P.
ARTICLE VII
REMEDIES OF BANKS
Upon the occurrence and during the continuance of any one or more of the
Events of Default, the Required Banks may, by notice to Borrower, declare the
obligation of the Banks to make Loans to be terminated, whereupon the same shall
forthwith terminate and the Required Banks may, by notice to Borrower, declare
the entire unpaid principal amount of the Loans 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 Loans 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 Loans, 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 the Banks and/or to any such holder shall thereupon
be due and payable in full without any need for the Required Banks to make any
such declaration or take any action and the Commitments 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:
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(A) AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT
OF THIS AGREEMENT, THE OTHER FINANCING DOCUMENTS OR THE LOANS MAY BE
BROUGHT IN THE COURTS OF RECORD OF THE STATE OF ILLINOIS SITTING IN CHICAGO
OR THE COURTS OF THE UNITED STATES LOCATED IN THE STATE OF ILLINOIS SITTING
IN CHICAGO;
(B) CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING;
(C) WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OF SUCH COURTS OR THAT ANY OF
SUCH COURTS IS AN INCONVENIENT FORUM; AND
(D) CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS.
Section 8.2. Rights and Remedies Cumulative. No right or remedy conferred
upon or reserved to the Administrative Agent or the Banks in the Financing
Documents is intended to be exclusive of any other right or remedy and every
such right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given under the Financing Documents
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 the Administrative Agent or any Bank of any right or
remedy under the Financing Documents shall impair any such right or remedy or
constitute a waiver of any Event of Default or an acquiescence therein. Every
right and remedy given under the Financing Documents or by law to the
Administrative Agent and the Banks may be exercised from time to time and as
often as may be deemed expedient by the Administrative Agent or the Banks.
Section 8.4. Amendments. Subject to the provisions of this Section 8.4, the
Required Banks (or the Administrative Agent with the consent in writing of the
Required 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 the Banks or Borrower hereunder or waiving
any Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of each Bank:
(A) Extend the maturity of any Loan or Note or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of
interest or fees hereunder or thereunder.
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(B) Reduce the percentages specified in the definition of Required
Banks.
(C) Extend the Commitment Termination Date or the Maturity Date or
increase the amount of the Commitment of any Bank hereunder, or permit
Borrower to assign its rights under this Agreement.
(D) Amend this Section 8.4.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent.
Section 8.5. Addresses for Notices. All notices, requests, demands and
other communications provided for hereunder shall be in writing (including
telecopied communication) and mailed, telecopied or delivered to the applicable
party at its address shown beneath its signature hereto or, as to any 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 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; Indemnification.
(A) Borrower agrees to pay on demand the reasonable fees and
out-of-pocket expenses, not to exceed $6,000, of Mayer, Brown & Platt,
counsel for the Administrative 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 the Administrative Agent and the Banks, 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
each of the Banks 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 such Bank's gross negligence or
willful misconduct; provided, however, this indemnity shall not apply to
any filing fees which have been previously paid by Borrower.
(B) Borrower agrees to indemnify each Agent and each Bank, and each of
their respective 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 the Administrative 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
-34-
Financing Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan
hereunder.
(C) The obligations of Borrower under this Section 8.6 shall survive
the termination of this Agreement.
Section 8.7. Participations. Each Bank may sell participations in all or
part of the Loans made by it or any other interest herein, in which event the
participant shall not have any rights under any Financing Document (the
participant's rights against such Bank in respect of that participation to be
those set forth in the agreement executed by the Banks in favor of the
participant relating thereto) and all amounts payable by Borrower hereunder or
thereunder shall be determined as if such Bank had not sold such participation.
The Banks may furnish any information concerning the Banks and Borrower in the
possession of the 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, the Administrative Agent and the 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 all Banks.
(B) Any 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 its Loans, Commitment and
its rights and obligations under its Note and under this Agreement,
pursuant to a form of assignment acceptable to 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 a Bank or an affiliate
thereof. Such consent shall not be unreasonably withheld. Notwithstanding
the foregoing provisions of this Section 8.8(B), any Bank may at any time
assign all or any portions of its Loans and Note to a Federal Reserve Bank
(but no such assignment shall release any Bank from any of its obligations
hereunder).
(C) Upon delivery to the Administrative 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 Borrower, the Administrative Agent or any other Bank shall be
required to release the transferor Bank with respect to the percentage of
the Loans and Commitment 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
-35-
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 Aggregate
Commitment.
(D) 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 its Note by operation of law (each a
"Transferee") and any prospective Transferee any and all information in
such 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 Loans, 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 the Banks remains unpaid or any Commitment
remains outstanding; provided, however, that Section 8.6 shall survive and
remain in full force and effect after expiration of the Commitments 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, none of the
Administrative Agent and Banks 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 the
Administrative 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 the Administrative Agent or such Bank in accordance with Section
8.5.
Section 8.10. Governing Law. This Agreement and the other Financing
Documents shall be governed by and construed in accordance with the laws of the
State of Illinois applicable to contracts made and to be wholly performed in
said State.
Section 8.11. Severability of Provisions. Any provision of any Financing
Document 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 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.
Section 8.13. Extension of the Commitment Termination Date. Unless the
Commitments shall have been terminated in their entirety or an Event of Default
or Default has occurred and is continuing, Borrower may by written notice to the
Administrative Agent given
-36-
no later than 30 days but not sooner than 60 days prior to the then applicable
Commitment Termination Date, request the Administrative Agent and the Banks to
extend the Commitment Termination Date to a Business Day falling not more than
364 days after the current Commitment Termination Date. The Administrative Agent
and the Banks have no obligation to extend the Commitment Termination Date and
any decision to extend the Commitment Termination Date must be agreed to by the
Administrative Agent and all Banks. Any decision to extend the Commitment
Termination Date shall be in the sole and absolute discretion of the
Administrative Agent and the Banks and shall be evidenced by a writing executed
by each of them. The failure of any Person to respond to a request for such an
extension within 10 days of such request shall be deemed a decision not to so
extend.
Section 8.14. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
-37-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/Steven L. Meyer
-------------------------------
Title: Treasurer
One Monument Circle
Indianapolis, Indiana 46204
Attention: Steven L. Meyer,
Treasurer
Facsimile: (317) 630-5763
ABN AMRO BANK N.V., individually and
as Administrative Agent
By: /s/Kris A. Grosshans
-------------------------------
Title: Vice President & Director
By: /s/David B. Bryant
-------------------------------
Title: Group Vice President
135 South LaSalle Street
Suite 710
Chicago, Illinois 60674-9135
Attention: Mark Lasek
Sonny Tran
Facsimile: (312) 904-6387
-38-
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/Walter R. Wolff
-------------------------------
Title: Joint General Manager
227 West Monroe Street, Suite 2600
Chicago, Illinois 60606
Attention: Nancy R. Barwig
Facsimile: (312) 855-8200
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/Mary Lu D. Cramer
-------------------------------
Title: Vice President
Suite 0363
One First National Plaza
Chicago, Illinois 60670-0363
Attention: Mary Lu Cramer
Facsimile: (312) 732-3055
UNION PLANTERS BANK, NATIONAL
ASSOCIATION
By: /s/
-------------------------------
Title: Vice President
One Indiana Square M.S. 227
Indianapolis, Indiana 46204
Attention: Jay Richards
Facsimile: (317) 221-6120
-39-
EXHIBIT A
REVOLVING NOTE
$__,000,000 ___________, 199_ Chicago, Illinois
FOR VALUE RECEIVED, INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana
corporation ("Borrower"), having its principal offices at One Monument Circle,
Indianapolis, Indiana 46204, unconditionally promises to pay to the order of
_________________________ (the "Bank"), at the principal office of ABN AMRO Bank
N.V. (the "Administrative Agent"), in Chicago, Illinois, the principal sum of
_________ Dollars ($_________) or, if less, the aggregate unpaid principal
amount of all Loans made by the Bank to Borrower pursuant to the provisions of
that certain Credit Agreement (as amended or otherwise modified from time to
time, the "Credit Agreement"), dated as of May 28, 1999, by and among Borrower,
various financial institutions and the Administrative Agent. If not defined
herein, all capitalized terms shall have the meanings as defined in the Credit
Agreement.
Borrower further promises to pay interest on the unpaid principal amount
hereof from the date of each Loan until such Loan is paid in full at the rate(s)
and at the time(s) provided in the Credit Agreement. Payments of both principal
and interest are to be made in lawful money of the United States of America. If
not sooner paid, the balance of the unpaid principal and all accrued and unpaid
interest shall be due and payable on the last day of the Interest Period
applicable to the Advance to which this Note relates. Payments of principal
and/or interest shall be made as specified in the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits and further security of, the Credit Agreement. This Note is subject to
the terms and conditions of the Credit Agreement including those which determine
the interest rates, when payment of this Note may be accelerated and all amounts
hereunder declared immediately due and payable and when payments of principal
and interest may be made.
Borrower expressly waives demand, presentment, protest, notice of protest
and notice of nonpayment or dishonor of this Note, and consents that the
Required Banks may extend the time of payment or otherwise modify the terms of
payment of any part of the whole of the debt evidenced by this Note, at the
request of any other person liable hereon, and such consent shall not alter nor
diminish the liability of any Person.
No delay or omission on the part of the Administrative Agent or the Banks
in the exercise of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Administrative Agent or the Banks of any right
or remedy shall preclude other or further exercise thereof or of any other right
or remedy.
Borrower agrees to pay all costs of collection, including
-1-
reasonable attorneys' fees in case the principal of this Note or any payment on
the principal or any interest thereon is not paid at the respective maturity
thereof and to pay all costs including reasonable attorneys' fees, regardless of
whether suit be brought. All amounts payable under this Note shall be payable
without relief from valuation and appraisement laws.
Whenever used in this Note, the singular includes the plural and the plural
includes the singular, the masculine includes the feminine and the neuter, and
the terms "Borrower", "Administrative Agent" and "Bank", are deemed to include
those Persons named in the opening paragraph of this Note and their respective
successors and assigns.
Notwithstanding any provisions herein or in any instrument now or hereafter
securing this Note, the total liability for payments in the nature of interest
shall not exceed the limits imposed by the usury laws of any applicable
jurisdiction.
This Note shall be construed according to the laws of the State of Illinois
applicable to contracts made and to be wholly performed in said State.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its duly authorized representative the day and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:___________________________
Its:__________________________
-2-
EXHIBIT B
ADVANCE REQUEST
ABN AMRO Bank N.V.,
as Administrative Agent
135 South LaSalle Street
Chicago, Illinois 60674-6387
This Advance Request is delivered to you pursuant to Section 2.7 of the
Credit Agreement, dated as of May 28, 1999 (as the same may be amended or
otherwise modified from time to time, the "Agreement"), by and among
Indianapolis Power & Light Company, an Indiana corporation ("Borrower"), various
financial institutions and ABN AMRO Bank N.V., as administrative agent (the
"Administrative Agent"). Capitalized terms shall have the meanings ascribed to
them in the Agreement.
Borrower hereby requests that an Advance be made in the aggregate principal
amount of $__________ on ________, _______. Such Advance shall be a [LIBOR
Advance] [Base Rate Advance]. The Interest Period for the Advance hereby
requested shall be ______________.
As an inducement to the Banks to make the Advance hereby requested,
Borrower represents and warrants to the Banks that: (a) all proceeds of the
Advance requested hereby will be used for the purposes permitted by the
Agreement; (b) all representations and warranties contained in the Agreement are
true; (c) there has been full compliance with the covenants set forth in the
Agreement; (d) no Default or Event of Default is now in existence or will result
from the Advance requested hereby; and (e) the FERC Order has not expired or
been revoked and permits the issuance of Notes to evidence the Advance hereby
requested.
Please disburse the proceeds of the Advance requested hereby on the date
specified above as follows: [include disbursement instructions].
Accordingly, the undersigned has caused this Advance Request to be executed
by its duly authorized officer this ____ day of _____________________, ____.
INDIANAPOLIS POWER & LIGHT COMPANY
By:___________________________
Its:__________________________
EXHIBIT C
May 28, 1999
ABN AMRO Bank N.V.,
individually and as Administrative Agent, and
the other financial institutions which are parties
to the Credit Agreement referred to below
Ladies and Gentlemen:
I am a Senior Vice President, General Counsel and Secretary of Indianapolis
Power & Light Company, an Indiana corporation (the "Company"), in connection
with the Credit Agreement (the "Agreement") dated as of May 28, 1999 by and
among the Company, the financial institutions which are parties thereto
(collectively, the "Banks"), and ABN AMRO Bank N.V., as administrative agent for
the Banks.
I have made such examination of facts and law as I have deemed necessary
for purposes of expressing the following opinions. In addition, I have with your
permission relied upon certificates of certain officers of the Company and
certificates of public officials with respect to certain matters. I am aware of
no facts contrary to the matters stated in such certificates. For purposes of
rendering this opinion, I have, with your consent and without investigation,
assumed:
(a) the genuineness of the signatures of all persons signing the
Agreement (other than the Company);
(b) the authority of the persons executing the Agreement on behalf of
the parties thereto (other than the Company);
(c) the authenticity of all documents submitted to me as originals;
(d) the accuracy and completeness of all corporate and public
documents and records made available to me;
(e) the conformity to authentic original documents of all documents
submitted to me as certified, conformed or photostatic copies;
(f) the due authorization, execution and delivery of the Agreement by
the parties thereto (other than the Company);
(g) the legal existence of the Banks; and
(h) that the Agreement is binding upon all the parties thereto (other
than the Company) and that all parties thereto (other than the Company)
will act in accordance with the terms and provisions thereof.
Based on the foregoing and pursuant to Section 3.2(A) of the Agreement, I
am of the opinion that:
A. The Company is a corporation duly organized and validly existing under
the laws of the State of Indiana.
B. The Company has full power to execute and deliver the Agreement and
perform its obligations under the Agreement.
C. The execution, delivery and performance by the Company of the Agreement
have been duly authorized by all necessary corporate action, and do not conflict
with any provision of law (including, without limitation, the FPA and the IPSCA)
or of the Articles of Incorporation or By-Laws of the Company, and do not
conflict with or contravene any agreement, indenture or contract to which the
Company is a party or by which any of its property is bound or any order issued
by a regulatory authority (including, without limitation, the FERC Order, as
defined in paragraph F below) binding upon the Company.
D. There is no litigation pending or threatened against or otherwise
affecting the Company or any of its properties or assets which would affect the
corporate existence of the Company or which might impair its corporate powers or
which would have a material adverse effect on the Company's ability to carry out
the transactions contemplated by the Agreement.
E. The Agreement is the legal, valid and binding obligation of the Company,
enforceable in accordance its their terms, except as the enforcement thereof may
be limited by applicable bankruptcy, insolvency, rearrangement, moratorium,
liquidation, conservatorship, reorganization, or similar debt relief laws
affecting the rights of creditors generally from time to time in effect and
general principles of equity.
F. 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 the Banks or performance by the Company
of any Financing Document (as defined in the Agreement), other than the order of
the FERC in Docket No. ES98-34-000 dated July 29, 1998 (the "FERC Order"). The
FERC Order is final and nonappealable and in full force and effect and, to the
best of my knowledge, no proceedings to revoke or modify the FERC Order have
been instituted or are pending.
-2-
G. The Company is not an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
H. The Company is a wholly-owned direct subsidiary of IPALCO Enterprises,
Inc., an Indiana corporation ("IPALCO"). IPALCO is a "holding company," as such
term is defined in the Public Utility Holding Company Act of 1935, as amended
("PUHCA"), and, by virtue of its relationship with IPALCO, the Company is a
"subsidiary company" of a "holding company" within the meaning of PUHCA, but
IPALCO and its Subsidiaries (as defined in the Agreement) are exempt from all
provisions of PUHCA and all rules thereunder, except Section 9(a)(2) thereof, by
virtue of having duly filed with the Securities and Exchange Commission one or
more exemption statements pursuant to Section 3(a)(1) of PUHCA and pursuant to
Rule 2 of the Securities and Exchange Commission and, to the best of my
knowledge, no proceedings to revoke or modify such exemption have been
instituted or are pending. Neither the Company nor any Subsidiary is a "holding
company" or, other than by virtue of its relationship with IPALCO as set forth
in the two immediately preceding sentences, a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of PUHCA.
This opinion letter is limited to the current Federal laws of the United
States and the current internal laws of the State of Indiana and I have not
considered, and express no opinion on, the laws of any other jurisdiction. In
expressing the opinion in paragraph E above, I have assumed that the laws of the
State of Indiana would apply to the Agreement despite selection of Illinois law
as the governing law of the Agreement. In making the foregoing assumption, I do
not mean to imply that an Indiana court would not give effect to such selection
of Illinois law.
This opinion is furnished to you pursuant to the Agreement and is solely
for your benefit in connection with the transactions contemplated thereby and
may not be used or relied upon by any other person for any purpose whatsoever
without in each instance my prior and express written consent. Notwithstanding
the foregoing, your assignees and participants may rely on this opinion as if
the same were addressed to them.
Very truly yours,
-3-
SCHEDULE I
BANKS AND COMMITMENTS
Bank Commitment
ABN AMRO Bank N.V. $45,000,000
The Industrial Bank of Japan, $45,000,000
Limited
The First National Bank $45,000,000
of Chicago
Union Planters Bank, National $15,000,000
Association
SCHEDULE II
PRICING SCHEDULE
The "Applicable Margin" and "Facility Fee Rate" for any day
are the respective rates per annum set forth below in the applicable row
under
the column corresponding to the Status that exists on such day:
Status Level I Status Level II Status
- --------------------------------------------------------------------------------
Applicable Margin 0.20% 0.30%
Facility Fee Rate 0.10% 0.15%
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the S&P Rating is A-
or higher.
"Level II Status" exists at any date if, at such date, (i) the S&P Rating
is BBB- or higher and (ii) Level I Status does not exist.
"S&P" means Standard & Poor's Ratings Group.
"S&P Rating" means the rating assigned to the senior unsecured long-term
debt securities of Borrower without third-party credit enhancement, and any
rating assigned to any other debt security of Borrower shall be disregarded. If
Borrower does not have any such senior unsecured long-term debt securities, "S&P
Rating" shall mean the implied rating which S&P establishes for senior unsecured
long-term debt securities of Borrower. The rating in effect on any date is that
in effect on the close of business on such date.
"Status" refers to the determination of which of Level I Status or Level II
Status exists at any date.
Exhibit 10.12.1
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of July 31, 2001 (this "Amendment") is to the
Credit Agreement (as heretofore amended, the "Credit Agreement") dated as of May
28, 1999 among INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana corporation (the
"Borrower"), various financial institutions (the "Banks") and ABN AMRO BANK
N.V., as administrative agent for the Banks (the "Administrative Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as defined in the Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENT. On (and subject to the occurrence of) the Amendment
Effective Date (as defined below), the Credit Agreement shall be amended in the
following manner:
1.1 (a) The following definitions shall be added to Section 1.1 of the
Credit Agreement, each in its appropriate alphabetical position:
"Bonds" means the $40,000,000 City of Petersburg, Indiana, Pollution
Control Refunding Revenue Bonds, Adjustable Rate Tender Securities (ARTS),
Series 1995B.
"Trustee" means Bank One Trust Company, National Association, in its
capacity as trustee for the Bonds.
(b) The definitions of "Advance Request," "Commitment" and "Commitment
Termination Date" in Section 1.1 of the Credit Agreement shall be amended and
restated to read in their entireties as follows:
"Advance Request" means a request, in substantially the form of
Exhibit B hereto, and otherwise in form and substance satisfactory to the
Administrative Agent, made by the Trustee on behalf of the Borrower in
accordance with Section 2.1(B).
"Commitment" means, for each Bank, its commitment to make Loans as set
forth in Article II hereof, as such commitment maybe reduced from time to
time in accordance with the terms of this Agreement. The amount of the
Commitment of each Bank as of July 31, 2001 is set forth on Schedule I.
"Commitment Termination Date" means the earlier of (x) July 30,2002
(as such date may be extended pursuant to Section 8.13) and (y) such
earlier date, if any, on which no Bonds are outstanding. Borrower shall
provide written notice to the Administrative Agent of the occurrence of the
date specified in clause (y) above.
1.2 Section 2.1(B) of the Credit Agreement shall be amended and restated to
read in its entirety as follows:
(B) Notice and Manner of Borrowing. The Trustee for the Bonds may, on
behalf of Borrower, submit to the Administrative Agent an Advance Request
requesting that an Advance be made on the date and in the amount specified
in such Advance Request. Concurrently with any Advance Request, Borrower
may provide a written notice to the Administrative Agent specifying the
type (Base Rate or LIBOR) of the Advance requested by such Advance Request,
and, with respect to LIBOR Advances, the Interest Period; provided that,
unless the Administrative Agent receives such concurrent notice prior to
10:00 am., Chicago time, at least three Business Days prior to the date of
the requested Advance specifying that such Advance specifying that such
Advance is to be a LIBOR Advance, such Advance shall be a Base Rate
Advance. Promptly after receipt of any Advance Request or any such notice,
the Administrative Agent shall advise each Bank thereof.
Not later than noon, Chicago time, on the date specified in the
relevant Advance Request, each Bank shall provide the Administrative Agent,
at the Administrative Agent's account specified in Section 2.4(A), with
immediately available funds covering such Bank's share of the Advance
requested thereby and, subject to the satisfaction of the conditions
precedent set forth in Section 3 with respect to such Advance, the
Administrative Agent shall promptly make such funds available to the
Trustee. Each borrowing shall be on a Business Day.
Absent contrary notice from Borrower by 10:00 am., Chicago time, one
Business Day prior to the last day of the Interest Period of an Advance,
Borrower shall be deemed to have given the Administrative Agent notice at
such time pursuant to this Section 2.1(8) to the effect that Borrower
requests that the Banks make Loans to Borrower on such date at the Base
Rate in an aggregate principal amount equal to the aggregate principal
amount of the Loans becoming due and payable on such date.
Borrower hereby irrevocably authorizes the Trustee to submit Advance
Requests on behalf of Borrower, subject to Section 2.6. Without limiting
the generality of Section 2.10(B), the Administrative Agent may
conclusively rely on any document purported to be submitted by the Trustee
believed by the Administrative Agent to be genuine and to have been signed
or presented by the proper Person.
1.3 Section 2.6 of the Credit Agreement shall he amended and restated to
read in its entirety as follows:
Section 2.6 Use of Proceeds. Borrower shall use the proceeds of the
Loans solely to provide liquidity support for the Bonds. It is understood
that, notwithstanding anything to the contrary herein, the Banks shall be
under no obligation to advance moneys under this Agreement to the Borrower
directly and that only the Trustee may submit Advance Requests, and only on
behalf of Borrower for the purpose of liquidity support for the Bonds.
1.4 Section 2.7 of the Credit Agreement shall be amended and restated to
read in its entirety as follows:
Section 2.7 Loan Advancements and Payments. The Banks shall make
Advances as requested by the Trustee on behalf of Borrower pursuant to
Advance Requests and in accordance with the following notice procedures.
Each Bank's portion of an Advance requested pursuant to an Advance Request
shall be in the proportion which its Commitment bears to the Aggregate
Commitment. Upon the Trustee submitting an Advance Request, Borrower shall
forthwith give the Administrative Agent a written notice specifying the
type and Interest Period of the Advance requested thereby, which notice
shall be in such form as the Administrative Agent may require from time to
time. Upon any Advance Request being submitted to the Administrative Agent,
Borrower shall forthwith deliver a certificate to the Administrative Agent,
in form and substance satisfactory to the Administrative Agent, to the
effect that all conditions precedent set forth in Section 3.1 have been
satisfied.
1.5 Section 2.16 of the Credit Agreement shall be amended by inserting the
parenthetical phrase "(or the Trustee on behalf of Borrower)" immediately after
the word "Borrower" in clause (b) of the first sentence of such Section.
1.6 Section 4.1(M) of the Credit Agreement shall be amended by deleting the
words "or allegation of such violation or failure of compliance" where they
appear in the last sentence of such Section.
1.7 Section 4.1(0) of the Credit Agreement shall be amended by deleting the
words "owned as of the date of this Agreement and to all properties and assets
acquired by Borrower hereafter" where they appear in such Section.
1.8 Section 4.1(P) of the Credit Agreement shall be amended by deleting the
date "December 31, 1998" where it appears in such Section and inserting in lieu
thereof the date "December 31, 2000."
1.9 Section 4.1(R) of the Credit Agreement shall be amended and restated to
read in its entirety as follows:
(R) Public Utility Holding Company Act Borrower is a wholly-owned
direct subsidiary of IPALCO and IPALCO is a wholly-owned direct subsidiary
of The AES Corporation, a Delaware corporation ("AES"). IPALCO is a
"holding company", as such term is defined in PUHCA, and, by virtue of its
relationship with IPALCO, Borrower is a "subsidiary company" of a "holding
company" within the meaning of PUHCA, but IPALCO and its Subsidiaries are
exempt from all provisions of PUHCA and all rules thereunder, except
Section 9(a)(2) thereof, by virtue of having duly filed with the Securities
and Exchange Commission one or more exemption statements pursuant to
Section 3(a)(1) of PUHCA and pursuant to Rule 2 of the Securities and
Exchange Commission. AES is a "holding company", as such term is defined in
PUHCA, and, by virtue of AES's ownership of all of IPALCO's common stock,
each of IPALCO and Borrower is a "subsidiary company" of a "holding
company" within the meaning of PUHCA, but AES is exempt from all provisions
of PUHCA and all rules thereunder, except Section 9(a)(2) thereof, by
virtue of the Securities and Exchange Commission's having so determined
pursuant to Section 3(a)(5) of PUHCA. To the best of Borrower's knowledge,
no proceedings to revoke or modify either of such exemptions have been
instituted or are pending. Neither Borrower or any Subsidiary is a "holding
company" or, other than by virtue of its relationships with AES and IPALCO
as set forth in the preceding portion of this paragraph, a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company", within the meaning of
PUHCA.
1.10 Section 4.1(U) of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
(U) [Intentionally left blank]
1.11 Schedule I to the Credit Agreement shall be amended and restated to
read in its entirety as set forth on Schedule I hereto.
1.12 The Pricing Schedule shall be amended and restated to read in its
entirety as set forth on Schedule II hereto.
1.13 Exhibit B to the Credit Agreement shall be amended and restated to
read in its entirety as set forth on Exhibit B hereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Administrative Agent and the Banks that after giving effect to
this Amendment (a) the representations and warranties made in the Credit
Agreement are true and correct on and as of the Amendment Effective Date with
the same effect as if made on and as of the Amendment Effective Date; (b) no
Event of Default or Default exists or will result from the execution and
delivery of this Amendment by the Borrower; (c) the execution and delivery by
the Borrower of this Amendment and the performance by the Borrower of its
obligations under the Credit Agreement as amended hereby (as so amended, the
"Amended Credit Agreement") (i) are within the corporate powers of the Borrower,
(ii) have been duly authorized by all necessary corporate action, (iii) have
received all necessary approvals from any governmental authority having
jurisdiction over the Borrower and (iv) do not and will not conflict with any
provision of any law or any administrative order or decree which is binding on
the Borrower or any of its Subsidiaries or of any provision of the certificate
of incorporation or bylaws or other organizational documents of the Borrower or
of any agreement which is binding on the Borrower or any of its Subsidiaries;
and (d) the Amended Credit Agreement is the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms,
subject to bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 above shall
become effective as of the date hereof (the "Amendment Effective Date") when the
Administrative Agent shall have received (a) a counterpart of this Amendment
executed by the Borrower and the Banks, (b) an amendment fee from the Borrower
payable to each Bank in an amount equal to 0.050% of such Bank's Commitment
(after giving effect to this Amendment) and (e) such other documents as the
Administrative Agent or any Bank may reasonably request.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the Amendment Effective Date, all references in the Credit
Agreement, the Notes, each other Financing Document and any similar document to
the "Credit Agreement" or similar terms shall refer to the Amended Credit
Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Expenses. The Borrower agrees to pay the reasonable out-of-pocket costs
and expenses of the Administrative Agent (including without limitation
reasonable attorney's fees) in connection with the preparation, execution and
delivery of this Amendment.
4.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be wholly performed within the State of Illinois.
4.5 Successors and Assigns. This Amendment shall be binding upon the
Borrower, the Banks and the Administrative Agent and their respective successors
and assigns, and shall inure to the benefit of the Borrower, the Banks and the
Administrative Agent and the successors and assigns of the Borrower, the Banks
and the Administrative Agent; provided that the Borrower shall not have any
right to assign this Amendment without the prior written consent of the
Administrative Agent and the Banks.
4.6 Continuance of Credit Agreement. The Borrower and the undersigned Bank
acknowledge that the other Banks party to the Credit Agreement have not agreed
to the extension of the Commitment Termination Date effected by this Amendment.
The parties hereto agree that, as amended hereby (including with respect to the
reduction of the Aggregate Commitment to $40,600,000), the Credit Agreement
shall continue in full force and effect between the parties hereto.
Delivered as of the day and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:/s/William H. Henley
-------------------------------------
Title: President
----------------------------------
ABN AMRO BANK N.V.
By:/s/ Mark R. Lasek
-------------------------------------
Title: Senior Vice President & Managing
Director
----------------------------------
By:/s/Philip J. Leigh
-------------------------------------
Title: Vice President
----------------------------------
SCHEDULE I
BANKS AND COMMITMENTS
Bank Commitment
- ---- ----------
ABN AMRO Bank N.V. $40,600,000
SCHEDULE II
PRICING SCHEDULE
The "Applicable Margin" and "Facility Fee Rate" for any day are the
respective rates per annum set forth below in the applicable row under the
column corresponding to the Status that exists on such day:
Status Level I Status Level II Status
---------------------------------------------------------------------
Applicable Margin 0.35% 0.55%
Facility Fee Rate 0.10% 0.15%
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the S&P Rating is A-
or higher.
"Level II Status" exists at any date if, at such date, (i) the S&P Rating
is BBB- or higher and (ii) Level I Status does not exist,
"S&P" means Standard & Poor's Ratings Group.
"S&P Rating" means the rating assigned to the senior unsecured long-term
debt securities of Borrower without third-party credit enhancement, and any
rating assigned to any other debt security of Borrower shall be disregarded. If
Borrower does not have any such senior unsecured long-term debt securities, "S&P
Rating" shall mean the implied rating which S&P establishes for senior unsecured
long-term debt securities of Borrower. The rating in effect on any date is that
in effect on the close of business on such date.
"Status" refers to the determination of which of Level I Status or Level II
Status exists at any date.
EXHIBIT B
ADVANCE REQUEST
ABN AMRO Bank N.V.,
as Administrative Agent
135 South LaSalle Street
Chicago, Illinois 60674-6387
This Advance Request is delivered to you pursuant to Section 2.1(B) of the
Credit Agreement, dated as of May 28, 1999 (as the same may be amended or
otherwise modified from time to time, the "Agreement"), by and among
Indianapolis Power & Light Company, an Indiana corporation ("Borrower"), various
financial institutions and ABN AMRO Bank N.V., as administrative agent (the
"Administrative Agent"). Capitalized terms shall have the meanings ascribed to
them in the Agreement.
The undersigned certifies to you that it is the duly appointed and acting
Trustee under the Bonds and that it is authorized to submit this Advance request
on behalf of Borrower to provide liquidity support for the Bonds.
The undersigned on behalf of Borrower hereby requests that an Advance be
made in the aggregate principal amount of $__________ on _________, 200___.
As an inducement to the Banks to make the Advance hereby requested, the
undersigned represents and warrants to the Banks that all proceeds of the
Advance requested hereby will be used for the purposes permitted by the
Agreement.
Please disburse the proceeds of the Advance requested hereby on the date
specified above as follows: [include disbursement instructions]
The undersigned agrees that none of the Administrative Agent, the Banks,
nor any of their directors, officers, employees, agents or affiliates shall have
any liability to the undersigned or any holder of any Bonds arising out of the
Agreement. Without limiting the generality of the foregoing, the undersigned
acknowledges that it is not an assignee of the rights of the Borrower under the
Agreement nor is the undersigned an intended beneficiary of the Agreement
Accordingly, the undersigned has caused this Advance Request to be executed
by its duly authorized officer this _____ day of _______________, 200___.
BANK ONE TRUST COMPANY
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as trustee for the Bonds
By:
---------------------------------------
Its:
--------------------------------------
Exhibit 10.12.2
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of November 13, 2001 (this "Amendment") is
to the Credit Agreement (as heretofore amended, the "Credit Agreement") dated as
of May 28, 1999 among INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana corporation
(the "Borrower"), various financial institutions (the "Banks") and ABN AMRO BANK
N.V., as administrative agent for the Banks (the "Administrative Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as defined in the Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENT. On (and subject to the occurrence of) the Amendment
Effective Date (as defined below), the Credit Agreement shall be amended in the
following manner:
1.1 Section 5.3 of the Credit Agreement shall be amended by (i) deleting
the word "and" immediately following clause (H) thereof, (ii) replacing the
period at the end of clause (I) thereof with a "; and" and (iii) adding the
following clause (J):
(J) promptly, written notice of any filing with the IURC to seek
authority to issue any preferred stock.
1.2 Section 6.1(J) of the Credit Agreement shall be amended and restated to
read in its entirety as follows:
(J) if (i) IPALCO shall at any time own, directly or indirectly,
shares of the Borrower representing less than 93% of the aggregate voting
power represented by all issued and outstanding capital stock of Borrower,
(ii) IPALCO shall at any time fail to own, directly or indirectly, all of
the issued and outstanding common stock of Borrower or (iii) IPALCO shall
at any time not be entitled to elect a majority of the members of the Board
of Directors of Borrower; or
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Administrative Agent and the Banks that after giving effect to
this Amendment (a) the representations and warranties made in the Credit
Agreement are true and correct on and as of the Amendment Effective Date with
the same effect as if made on and as of the Amendment Effective Date; (b) no
Event of Default or Default exists or will result from the execution and
delivery of this Amendment by the Borrower; (c) the execution and delivery by
the Borrower of this Amendment and the performance by the Borrower of its
obligations under the Credit Agreement as amended hereby (as so amended, the
"Amended Credit Agreement") (i) are within the corporate powers of the Borrower,
(ii) have been duly authorized by all necessary corporate action, (iii) have
received all necessary approvals from any governmental authority having
jurisdiction over the Borrower and (iv) do not and will not conflict with any
provision of any law or any administrative order or decree which is binding on
the Borrower or any of its Subsidiaries or of any provision of the certificate
of incorporation or bylaws or other organizational documents of the Borrower or
of any agreement which is binding on the Borrower or any of its Subsidiaries;
and (d) the Amended Credit Agreement is the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms,
subject to bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 above shall
become effective as of the date hereof (the "Amendment Effective Date") when the
Administrative Agent shall have received (a) a counterpart of this Amendment
executed by the Borrower and the Banks and (b) such other documents as the
Administrative Agent or any Bank may reasonably request.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the Amendment Effective Date, all references in the Credit
Agreement, the Notes, each other Financing Document and any similar document to
the "Credit Agreement" or similar terms shall refer to the Amended Credit
Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Expenses. The Borrower agrees to pay the reasonable out-of-pocket costs
and expenses of the Administrative Agent (including without limitation
reasonable attorney's fees) in connection with the preparation, execution and
delivery of this Amendment.
4.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be wholly performed within the State of Illinois.
4.5 Successors and Assigns. This Amendment shall be binding upon the
Borrower, the Banks and the Administrative Agent and their respective successors
and assigns, and shall inure to the benefit of the Borrower, the Banks and the
Administrative Agent and the successors and assigns of the Borrower, the Banks
and the Administrative Agent; provided that the Borrower shall not have any
right to assign this Amendment without the prior written consent of the
Administrative Agent and the Banks.
Delivered as of the day and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By:/s/ William H. Henley
-------------------------------------
Title: President
----------------------------------
ABN AMRO BANK N.V.
By:/s/ L. David Wright
-------------------------------------
Title: Senior Vice President
----------------------------------
By:/s/ Miguel A. Pachicano
-------------------------------------
Title: Senior Vice President
----------------------------------