<PAGE> File No. 70-6458
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
Post-Effective Amendment No. 18
to
FORM U-1
_________________________________
APPLICATION OR DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
***
INDIANA MICHIGAN POWER COMPANY
One Summit Square, P.0. Box 60, Fort Wayne, Indiana 46801
(Name of company filing this statement and
address of principal executive offices)
***
AMERICAN ELECTRIC POWER COMPANY, INC.
1 Riverside Plaza, Columbus, Ohio 43215
(Name of top registered holding company
parent of each applicant or declarant)
***
G. P. Maloney, Executive Vice President
American Electric Power Service Corporation
1 Riverside Plaza, Columbus, Ohio 43215
Jeffrey D. Cross, Assistant General Counsel
American Electric Power Service Corporation
1 Riverside Plaza, Columbus, Ohio 43215
(Names and addresses of agents for service)
The undersigned Indiana Michigan Power Company, formerly
Indiana & Michigan Electric Company ("I&M"), hereby amends as
follows its Application or Declaration on Form U-1 in File No.
70-6458, as heretofore amended:
1. By amending and restating the last five paragraphs
which were added at the end of Item 1 by Post-Effective Amendment
No. 17 as follows:
"In connection with an adjustment in the interest rate,
the Refunding Bonds may be tendered, or may be deemed to be
tendered, to the Trustee, by the owners thereof. I&M
intends to remarket any Refunding Bonds so tendered through
a remarketing agent, and may have a liquidity provider back
up I&M's obligations. If a remarketing is unsuccessful, I&M
may be obligated to, or may want to, purchase some or all of
the Refunding Bonds. The Refunding Bonds will be subject to
mandatory redemption and to optional redemption at the
direction of I&M under certain circumstances.
If it is deemed advisable, I&M may provide some form of
credit enhancement for the Refunding Bonds, such as a letter
of credit, surety bond or bond insurance, and I&M may pay a
fee in connection therewith. In addition, I&M may provide
for a liquidity provider for interest payments, remarketing,
redemption or maturity of the Refunding Bonds. Any letter
of credit would not exceed $55,000,000. The type of credit
enhancement may change while the Refunding Bonds are
outstanding. Unreimbursed drawings under the letter of
credit or liquidity provider would bear interest at not more
than 2% above the bank's prime rate. I&M may pay an annual
or upfront fee for the credit enhancement or liquidity
provider which would not exceed 1.25% annually of the face
amount.
In connection with such credit enhancement or liquidity
provider, I&M may enter into a reimbursement agreement,
standby bond purchase agreement or other comparable
agreement substantially in the form attached hereto as
Exhibit B-12.
I&M will not agree, without further order of this
Commission, to the issuance of any Refunding Bond by the
City (i) if the stated maturity of any such Bond shall be
more than forty (40) years, (ii) if the discount from the
initial public offering price of any such Bond shall exceed
5% of the principal amount thereof, or (iii) if the initial
public offering price shall be less than 95% of the
principal amount thereof.
The transactions described herein will be consummated
no later than December 31, 1996. I&M hereby requests that
an Order be issued by this Commission (i) releasing
jurisdiction with respect to the purchase price of the
Project as it is affected by the sale of the Refunding Bonds
and (ii) reserving jurisdiction with respect to the purchase
price of the Project as it is affected by the sale of
further series of Revenue Bonds."
2. By adding the following additional paragraphs to the
end of Item 1 of said Form U-1:
"Compliance with Rule 54
AEP Resources International, Limited ('AEPRI'), an indirect
subsidiary of AEP, is an exempt wholesale generator ('EWG'), as
defined in Section 32 of the Act. AEP, through its subsidiary,
AEP Resources, Inc., invested $5,000 in AEPRI. This investment
represents less than 1% of $1,304,478,000, the average of the
consolidated retained earnings of AEP reported on Form 10-K or
Form 10-Q, as applicable, for the four consecutive quarters ended
September 30, 1994.
AEPRI will maintain books and records and make available the
books and records required by Rule 53(a)(2). No more than 2% of
the employees of the operating subsidiaries of AEP will, at any
one time, directly or indirectly, render services to AEPRI. AEP
will submit a copy of Item 9 and Exhibits G and H of AEP's Form
U5S (commencing with the Form U5S filed for the first calendar
year for which AEP reports any data under Item 9 or Exhibits G
and H), to each of the public service commissions having
jurisdiction over the retail rates of AEP's operating utility
subsidiaries. No data was filed under Item 9 or Exhibits G or H
in AEP's Form U5S for the calendar year 1993.
In addition, (i) neither AEP nor any subsidiary of AEP is
the subject of any pending bankruptcy or similar proceeding; (ii)
AEP's average consolidated retained earnings for the four most
recent quarterly periods ($1,304,478,000) represented a decrease
of approximately $28,532,000 (or 2.1%) in the average
consolidated retained earnings from the previous four quarterly
periods ($1,333,010,000); and (iii) for the year ended December
31, 1993, there were no losses attributable to AEP's direct or
indirect investments in AEPRI."
3. By adding the following paragraph to the end of Item 2
of said U-1:
"Estimates of the fees, commissions and expenses to be
paid or incurred directly or indirectly by I&M in connection
with the preparation for and the issuance of Refunding Bonds
are as follows:
Goldman, Sachs & Co. (underwriting compensation,
including counsel fees) $ 255,000
CUSIP Service Bureau 120
Printing 25,000
Hotels and Airfare 8,000
Norwest Bank Indiana, N.A., Trustee (including
counsel) 21,000
Deloitte & Touche LLP 15,000
Simpson Thacher & Bartlett 75,000
Dewey Ballantine 4,000
Baker & Daniels 35,000
Loomis, Ewert, Ederer, Parsley, Davis & Gotting 5,000
Counsel for City of Rockport 5,000
Rating Agency Fee 18,000<PAGE>
The Bank of New York 32,500
Bond Insurance Premium 905,000
Winthrop, Stimson, Putnam & Roberts 50,000
Miscellaneous 30,000
TOTAL $1,483,620"
4. By supplying the following exhibits:
B-4-5 Form of Third Amendment to Agreement of Sale
B-7-6 Form of Sixth Supplemental Indenture between
the City and the Trustee
B-12 Form of standby purchase agreement
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
Post-Effective Amendment No. 18 to be signed on its behalf by the
undersigned thereunto duly authorized.
INDIANA MICHIGAN POWER COMPANY
By __/s/ G. P. Maloney________
Vice President
Dated: June 9, 1995
Exhibit B-4-5
THIRD AMENDMENT TO AGREEMENT OF SALE
THIRD AMENDMENT, dated as of the 1st day of June, 1995, by
and between the CITY OF ROCKPORT, INDIANA, a municipal
corporation and political subdivision of the State of Indiana
("Issuer"), and INDIANA MICHIGAN POWER COMPANY, a corporation
organized and existing under the laws of the State of Indiana
("Company"), to the Agreement of Sale, dated as of December 1,
1984, as amended by the First Amendment to the Agreement of Sale,
dated as of July 1, 1985 and the Second Amendment to the
Agreement for Sale, dated as of February 1, 1995, between the
Issuer and the Company ("Existing Agreement");
W I T N E S S E T H :
WHEREAS, the Issuer proposes to issue $50,000,000 aggregate
principal amount of its Pollution Control Revenue Refunding Bonds
(Indiana Michigan Power Company Project), Series 1995 B Bonds
("Series 1995 B Bonds"), as Refunding Bonds pursuant to Section
2.11 of its Indenture of Trust, dated as of December 1, 1984, as
supplemented and amended ("Indenture"), with Norwest Bank
Indiana, N.A. (formerly Lincoln National Bank and Trust Company
of Fort Wayne), as Trustee ("Trustee"); and
WHEREAS, the Issuer and the Company desire to amend the
Existing Agreement in connection with the issuance of the Series
1995 B Bonds, pursuant to Section 9.6 of the Existing Agreement
and Section 11.01(v) of the Indenture; and
WHEREAS, Section 9.6 of the Existing Agreement provides that
the Existing Agreement may not be amended, changed, modified,
altered or terminated except in accordance with the Indenture;
and
WHEREAS, Section 11.01(v) of the Indenture provides that the
Issuer and the Trustee shall, without the consent of or notice to
the bondholders, consent to any amendment, change or modification
of the Existing Agreement in connection with the issuance of
Refunding Bonds pursuant to Section 2.11 of the Indenture; and
WHEREAS, the Trustee has so consented to this Third
Amendment to Agreement of Sale;
NOW, THEREFORE, the Issuer and the Company covenant and
agree as follows:
Section 1. The definition of "Bond Fund" in Section 1.1
of the Existing Agreement is amended to read as follows:
"'Bond Fund' shall mean, as the context may require:
(i) the 1985 Bond Fund established by the First
Supplemental Indenture relating to the Series 1985 A Bonds;
(ii) the Adjustable 1985 Bond Fund established by the
Second Supplemental Indenture relating to the Adjustable
Series 1985 A Bonds;
(iii) the Fixed Rate 1985 Bond Fund established by the
Third Supplemental Indenture relating to the Fixed Rate
Series 1985 A Bonds;
(iv) the 1995 Bond Fund established by the Fifth
Supplemental Indenture relating to the Series 1995 A Bonds;
or
(v) the Series 1995 B Bond Fund established by the
Sixth Supplemental Indenture relating to the Series 1995 B
Bonds."
Section 2. Section 3.7 of the Existing Agreement is
amended to read as follows:
"Section 3.7. Investment of Construction Fund and Bond Fund
Moneys. The Issuer will cause any moneys held as a part of
the Construction Fund, the Bond Fund, the 1985 Bond Fund
(other than the proceeds of any drawings under the Floating
Letter of Credit), the Adjustable 1985 Bond Fund (other than
the proceeds of any drawings under the Adjustable Letter of
Credit), the Fixed Rate 1985 Bond Fund, the 1995 Bond Fund
and the Series 1995 B Bond Fund (other than any moneys
received under the Standby Purchase Agreement) to be
invested or reinvested by the Trustee (through its bond
department if it so desires), at the request of and directed
by the Company, in (a) Government Obligations; (b)
obligations issued or guaranteed by any person controlled or
supervised by and acting as an instrumentality of the United
States of America pursuant to authority granted by the
Congress of the United States; (c) interest bearing
accounts, time deposits or certificates of deposit which are
secured by obligations of the type described in clause (a)
above or which are issued by banks or trust companies,
including the Trustee, organized under the laws of the
United States of America or any state thereof, which have
combined capital and surplus of at least $10,000,000; (d)
obligations issued or guaranteed by any state of the United
States or the District of Columbia, or any political
subdivision of any such state or District, rated A or better
by S&P or Moody's; (e) commercial paper or finance company
paper rated prime by S&P or Moody's, respectively; (f)
bankers acceptances drawn on and accepted by commercial
banks; (g) repurchase agreements fully secured by any one or
more of the foregoing; and (h) any other obligations or
securities to the extent that moneys in the Construction
Fund, the Bond Fund, the 1985 Bond Fund (other than the
proceeds of any drawings under the Floating Letter of
Credit), the Adjustable 1985 Bond Fund (other than the
proceeds of any drawings under the Adjustable Letter of
Credit), the Fixed Rate 1985 Bond Fund or the Series 1995 B
Bond Fund (other than any moneys received under the Standby
Purchase Agreement), are permitted to be invested therein
under applicable law; provided that moneys held for the
purchase or redemption of Series 1985 A Bonds or Adjustable
Series 1985 A Bonds under the Indenture and which have not
been delivered on the date fixed for such purchase or
redemption may be invested solely in Government Obligations
which mature not more than 30 days from the date of such
investment or earlier, if needed."
Section 3. The Existing Agreement is amended to add the
following sections immediately following Section 4.13 thereof:
"Section 4.14. Standby Purchase Agreement; Alternate
Liquidity Facility.
(a) At its option, the Company may at any time
(with not less than 20 days' prior written notice
received by the Trustee and copies of such notice given
to the Agent and the Series 1995 B Remarketing Agent)
(i) provide for the delivery to the Trustee on any
Business Day of an Alternate Liquidity Facility or (ii)
terminate the Standby Purchase Agreement then in
effect, but only if the Company shall, on or before the
date of delivery of the Alternate Liquidity Facility
(which shall not be later than the effective date
thereof) or on or before the effective date of the
termination of the Standby Purchase Agreement then in
effect, deliver to the Trustee:
(1) a Favorable Opinion of Series 1995 B
Bond Counsel;
(2) a certificate of the Company as to
whether the Series 1995 B Bonds are then rated by
Moody's, S&P or Fitch; and
(3) either
(i) if the Series 1995 B Bonds are
rated by two or more of Moody's, S&P and
Fitch, written evidence from two of these
rating agencies, or if the Series 1995 B
Bonds are rated by only one of Moody's, S&P
or Fitch, written evidence from that rating
agency, to the effect that such rating agency
has reviewed the proposed Alternate Liquidity
Facility or the proposed termination of the
Standby Purchase Agreement then in effect, as
the case may be, and that the delivery of the
proposed Alternate Liquidity Facility or the
proposed termination of the Standby Purchase
Agreement then in effect will not, by itself,
result in a reduction, suspension or
withdrawal of such rating agency's short-term
rating or ratings of the Series 1995 B Bonds;
or
(ii) written evidence from the Bond
Insurer to the effect that the Bond Insurer
has reviewed the proposed Alternate Liquidity
Facility or the proposed termination of the
Standby Purchase Agreement then in effect, as
the case may be, and finds the same to be
acceptable to the Bond Insurer.
(b) The Company may, at its election, but only
with the written consent of each Series 1995 B Bank,
provide for one or more extensions of the Standby
Purchase Agreement then in effect, for any period
commencing after its then-current Expiration Date or
for one or more amendments of the Standby Purchase
Agreement then in effect to increase or decrease the
amount available thereunder for interest.
(c) An assignment or assumption of a Series 1995
B Bank's interest and obligations, or any portion
thereof, under the Standby Purchase Agreement to a bank
or other institution that is not at the time already a
Series 1995 B Bank thereunder shall be deemed to be the
delivery of an Alternate Liquidity Facility for
purposes of Section 4.14(a) hereof.
(d) Anything in this Agreement or the Indenture
to the contrary notwithstanding, no Alternate Liquidity
Facility or amendment to the Standby Purchase Agreement
may be provided pursuant to this Section 4.14 which:
(i) so long as the Series 1995 B
Bonds accrue interest at a Daily Rate or a
Weekly Rate, reduces the amount available
thereunder for interest to a period shorter
than 35 days; or
(ii) so long as the Series 1995 B
Bonds accrue interest at a Term Rate, reduces
the amount available thereunder for interest
to a period shorter than 185 days or does not
cover the premium, if any, which would be
included in the Purchase Price of the Series
1995 B Bonds pursuant to Section 4.02(c) of
the Sixth Supplemental Indenture if such
Alternate Liquidity Facility or Standby
Purchase Agreement, as amended, is not
extended beyond its Expiration Date.
Section 4.15. Payment to Series 1995 B Paying Agent. The
Company shall pay to the Series 1995 B Paying Agent the
Purchase Price of Series 1995 B Bonds to be purchased under
Section 4.03 of the Sixth Supplemental Indenture on the
Purchase Date, except to the extent that remarketing
proceeds or proceeds under the Standby Purchase Agreement
are available for such purchase."
Section 4. The last sentence of Section 5.8 of the
Existing Agreement is amended to read as follows:
"The Company and the Issuer also covenant and agree that the
Company will take or cause to be taken all actions necessary
to ensure that the Issuer will be deemed to have fulfilled
the requirements of Section 148(f) of the Internal Revenue
Code of 1986, as amended from time to time, in regard to the
Bonds."
Section 5. Section 7.1 of the Existing Agreement is
amended to insert the following subsection (f) immediately
following subsection (e):
"(f) Failure by the Company to pay when due the amounts
required to be paid pursuant to Section 4.15 hereof which
causes an Event of Default to occur under clause (k) of
Section 8.01 of the Indenture."
Section 6. The Existing Agreement is amended to add the
following Section 8.01(c) at the end of Section 8.01:
"(c) The Company may not cancel or terminate this
Agreement as provided in Section 8.1(a) or (b) hereof until
the Series 1995 B Bonds mature or are called for redemption
prior to the next day upon which such Series 1995 B Bond is
subject to purchase pursuant to Section 4.01 or 4.02 of the
Sixth Supplemental Indenture and the Company waives, to the
satisfaction of the Trustee, its right to convert the Rate
Period of the Series 1995 B Bonds."
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Third Amendment to Agreement of Sale to be executed in their
respective corporate names and their respective corporate seals
to be hereunto affixed and attested by their duly authorized
officers, all as of the date first above written.
CITY OF ROCKPORT, INDIANA
By_______________________
Mayor
(SEAL)
Attest:
_____________________________
Clerk-Treasurer
INDIANA MICHIGAN POWER COMPANY
By_______________________
Vice President
(SEAL)
Attest:
_______________________________
Assistant Secretary
Exhibit B-7-6
SIXTH SUPPLEMENTAL INDENTURE OF TRUST
BETWEEN
CITY OF ROCKPORT, INDIANA
and
NORWEST BANK INDIANA, N.A.
(formerly Lincoln National Bank
and Trust Company of Fort Wayne),
Trustee
Dated as of June 1, 1995
This instrument was prepared by:
Theodore J. Esping, Esq.
Baker & Daniels
300 North Meridian Street
Suite 2700
Indianapolis, Indiana 46204
THIS SIXTH SUPPLEMENTAL INDENTURE OF TRUST ("Sixth
Supplemental Indenture"), made as of the first day of June, 1995,
by and between the CITY OF ROCKPORT, INDIANA, a municipal
corporation and political subdivision of the State of Indiana
("Issuer"), and NORWEST BANK INDIANA, N.A. (formerly Lincoln
National Bank and Trust Company of Fort Wayne), a national
banking association, existing and authorized to accept and
execute trusts of the character herein set out under and by
virtue of the laws of the United States, with its principal
corporate trust office located in Fort Wayne, Indiana, as Trustee
("Trustee");
W I T N E S S E T H :
WHEREAS, the Issuer has issued $110,000,000 aggregate
principal amount of its Pollution Control Revenue Bonds (Indiana
& Michigan Electric Company Project), Series 1984 A ("Series A
Bonds"), pursuant to Indiana Code 36-7-11.9 and Indiana Code 36-
7-12 (collectively, the "Act") and an Indenture of Trust dated as
of December 1, 1984 ("1984 Indenture"), between the Issuer and
the Trustee for the purpose of acquiring, constructing,
installing, equipping and financing the portion of certain
facilities designed for the abatement or control of atmospheric
and water pollution, including collection of sewage or disposal
of solid waste ("Project"), at the Rockport Generating Station
owned by Indiana & Michigan Electric Company ("Company") as
tenant in common without right of partition with AEP Generating
Company, which facilities were sold to the Company pursuant to an
Agreement of Sale dated as of December 1, 1984, as amended
("Agreement"), between the Issuer and the Company; and
WHEREAS, the Issuer has issued simultaneously (a)
$50,000,000 aggregate principal amount of its Floating Rate
Weekly Demand Pollution Control Revenue Refunding Bonds (Indiana
& Michigan Electric Company Project), Series 1985 A ("Series 1985
A Bonds"), pursuant to a First Supplemental Indenture of Trust,
dated as of July 1, 1985 ("First Supplemental Indenture"), as
Refunding Bonds pursuant to Section 2.11 of the 1984 Indenture to
refund a portion of $110,000,000 aggregate principal amount of
the Series A Bonds which matured by their terms on December 16,
1985; (b) $50,000,000 aggregate principal amount of its
Adjustable Rate Tender Pollution Control Revenue Refunding Bonds
(Indiana & Michigan Electric Company Project), Series 1985 A
("Adjustable Series 1985 A Bonds"), pursuant to a Second
Supplemental Indenture of Trust, dated as of July 1, 1985
("Second Supplemental Indenture"), as Refunding Bonds pursuant to
Section 2.11 of the 1984 Indenture to refund a portion of
$110,000,000 aggregate principal amount of the Series A Bonds
which matured by their terms on December 16, 1985; and (c)
$50,000,000 aggregate principal amount of its Fixed Rate
Pollution Control Revenue Bonds (Indiana & Michigan Electric
Company Project), Series 1985 A ("Fixed Rate Series 1985 A
Bonds"), pursuant to a Third Supplemental Indenture of Trust,
dated as of July 1, 1985 ("Third Supplemental Indenture"), as
Refunding Bonds pursuant to Section 2.11 of the 1984 Indenture to
refund a portion of $110,000,000 aggregate principal amount of
the Series A Bonds which matured by their terms on December 16,
1985 and as Additional Bonds pursuant to Section 2.10 of the 1984
Indenture to finance a portion of the estimated Cost of
Construction, as defined in the Agreement, of the Project not
theretofore paid by application of the Series A Bond proceeds;
and
WHEREAS, the Issuer has determined to issue $50,000,000
aggregate principal amount of its Pollution Control Revenue
Refunding Bonds (Indiana Michigan Power Company Project), Series
1995 A ("Series 1995 A Bonds"), pursuant to the Fifth
Supplemental Indenture, dated as of February 1, 1995 ("Fifth
Supplemental Indenture"), as Refunding Bonds pursuant to Section
2.11 of the 1984 Indenture to refund the Fixed Rate Series 1985 A
Bonds; and
WHEREAS, the Issuer has determined to issue $50,000,000
aggregate principal amount of its Pollution Control Revenue
Refunding Bonds (Indiana Michigan Power Company Project), Series
1995 B ("Series 1995 B Bonds"), as Refunding Bonds pursuant to
Section 2.11 of the 1984 Indenture to refund the Adjustable
Series 1985 A Bonds at their redemption on August 1, 1995
pursuant to the Act; and
WHEREAS, all things necessary have been done and performed
to constitute this Sixth Supplemental Indenture a valid and
binding agreement securing the payment of the principal of, and
premium, if any, and interest on all bonds issued and to be
issued hereunder and under the 1984 Indenture (the 1984
Indenture, as supplemented by the First Supplemental Indenture,
the Second Supplemental Indenture, the Third Supplemental
Indenture, the Fourth Supplemental Indenture of Trust, dated as
of June 1, 1990, the Fifth Supplemental Indenture, and this Sixth
Supplemental Indenture, being referred to herein as the
"Indenture") and the execution and delivery of this Sixth
Supplemental Indenture and the execution and issuance of the
Series 1995 B Bonds have in all respects been authorized;
NOW, THEREFORE, the Issuer hereby agrees and covenants with
the Trustee and with the respective owners, from time to time, of
the Series 1985 A Bonds, the Adjustable Series 1985 A Bonds, the
Fixed Rate Series 1985 A Bonds, the Series 1995 A Bonds and the
Series 1995 B Bonds, or any part thereof, as follows:
ARTICLE I
PURPOSE OF SERIES 1995 B BONDS
SECTION 1.01. Purpose of Series 1995 B Bonds. The Series
1995 B Bonds of the Issuer are authorized for the purpose of
refunding the Adjustable Series 1985 A Bonds at their redemption
on August 1, 1995.
ARTICLE II
CONDITIONS AND TERMS OF THE SERIES 1995 B BONDS
SECTION 2.01. Issuance of Series 1995 B Bonds;
Denominations. There are hereby authorized to be issued
Pollution Control Revenue Bonds of the Issuer in the aggregate
principal amount of Fifty Million Dollars ($50,000,000) as
Refunding Bonds pursuant to Section 2.11 of the Indenture. Said
Bonds shall be designated "City of Rockport, Indiana Pollution
Control Revenue Refunding Bonds (Indiana Michigan Power Company
Project), Series 1995 B", and shall mature, subject to the right
of prior redemption as hereinafter set forth, on June 1, 2025.
Both principal of and interest on the Series 1995 B Bonds
shall be payable in lawful money of the United States of America,
but only from the revenues and receipts pledged to the payment
thereof as provided herein and in the Indenture.
All Series 1995 B Bonds accruing interest at Daily or Weekly
Rates shall be issued in denominations of $100,000 or whole
multiples thereof. All Series 1995 B Bonds accruing interest at
Commercial Paper Rates shall be issued in denominations of
$100,000 and integral multiples of $1,000 in excess thereof. All
Series 1995 B Bonds accruing interest at a Term Rate shall be
issued in denominations of $5,000 or whole multiples thereof.
SECTION 2.02. Form of Series 1995 B Bonds. The Series 1995
B Bonds, the certificate of authentication and the assignment to
appear thereon shall each be in substantially the form set forth
in Exhibit A attached hereto and incorporated herein, with
appropriate or necessary insertions, omissions and variations as
permitted or required by the Indenture or this Sixth Supplemental
Indenture.
SECTION 2.03. Execution, Authentication and Delivery of
Series 1995 B Bonds. The Series 1995 B Bonds shall be executed,
authenticated and delivered as provided in Section 2.11 of the
Indenture. The proceeds from the Series 1995 B Bonds shall be
deposited in the Adjustable Series 1985 A Refunding Fund
established under Section 5.02 hereof, except that accrued
interest, if any, on the Series 1995 B Bonds shall be deposited
in the Series 1995 B Bond Fund.
SECTION 2.04. Interest Rate. All Series 1995 B Bonds shall
accrue interest at Weekly Rates on the date of original issuance
and thereafter at Weekly Rates unless and until the Rate Period
for the Series 1995 B Bonds is converted to a different Rate
Period pursuant to Section 2.05 hereof.
SECTION 2.05. Determination of Interest Rates.
(a) Determination by Series 1995 B Remarketing Agent.
(i) While the Series 1995 B Bonds accrue
interest at Daily, Weekly, Commercial Paper and Term Rates,
the Interest Rate shall be determined by the Series 1995 B
Remarketing Agent as the rate of interest which, in the
judgment of the Series 1995 B Remarketing Agent, would cause
the Series 1995 B Bonds to have a market value as of the
date of determination equal to the principal amount thereof,
taking into account prevailing market conditions; provided
that the Interest Rate shall not exceed the Series 1995 B
Maximum Rate. Notwithstanding anything herein to the
contrary, the Interest Rate on Bank Bonds shall be the Bank
Rate.
(ii) In the event the Series 1995 B Remarketing
Agent fails for any reason to determine or notify the
Trustee of the Interest Rate for any Series 1995 B Interest
Rate Period or the Interest Rate is not or cannot be
determined for whatever reason:
(A) The Interest Rate then in effect for
Series 1995 B Bonds that accrue interest at Daily Rates
will remain in effect from day to day until the Trustee
is notified of a new Daily Rate determined by the
Series 1995 B Remarketing Agent.
(B) The Interest Rate then in effect for
Series 1995 B Bonds that accrue interest at Weekly
Rates will remain in effect from week to week until the
Trustee is notified of a new Weekly Rate determined by
the Series 1995 B Remarketing Agent.
(C) The Interest Rate for any Series 1995 B
Bond that accrues interest at a Commercial Paper Rate
and for which a Commercial Paper Rate and Commercial
Paper Rate Period is not determined shall be equal to
100% of the prime commercial paper rate (30 days) shown
in the table captioned "short-term tax-exempt yields"
in the edition of "The Bond Buyer" published on the day
on which such rate is determined or, if such rate is
not published on that day, the most recent publication
of such rate, and the Series 1995 B Interest Rate
Period for such Series 1995 B Bond shall extend through
the day preceding the next Series 1995 B Business Day,
until the Trustee is notified of a new Commercial Paper
Rate and Commercial Paper Rate Period determined for
such Series 1995 B Bond by the Series 1995 B
Remarketing Agent.
(D) The Interest Rate then in effect for
Series 1995 B Bonds that accrue interest at the Term
Rate will be automatically converted to Commercial
Paper Rates with Commercial Paper Rate Periods
beginning on each Series 1995 B Business Day and
extending through the day preceding the next Series
1995 B Business Day until the Trustee is notified of a
new Commercial Paper Rate and Commercial Paper Rate
Period determined for such Series 1995 B Bond by the
Series 1995 B Remarketing Agent.
(iii) All determinations of Interest Rates and
Commercial Paper Rate and Term Rate Periods pursuant to
Sections 2.05 and 2.06 hereof shall be conclusive and
binding upon the Issuer, the Company, the Trustee, the
Series 1995 B Paying Agent, the Bond Insurer, the Agent and
the owners of the Series 1995 B Bonds to which such rates
are applicable.
(iv) The Interest Rate in effect for Series 1995
B Bonds during any Series 1995 B Interest Rate Period shall
be available to owners of the Series 1995 B Bonds on the
date such Interest Rate is determined, between 1:00 p.m. and
5:00 p.m., New York City time, from the Series 1995 B
Remarketing Agent or the Trustee at their principal offices
and shall also be communicated by the Series 1995 B
Remarketing Agent promptly to the Company by telephonic or
Electronic notice.
(v) During any transitional period for a
conversion from the Commercial Paper Rate Period to a Daily
Rate or Weekly Rate Period in which the Series 1995 B
Remarketing Agent is setting different Commercial Paper Rate
Periods in order to effect an orderly transition of such
conversion, Series 1995 B Bonds accruing interest at the
Commercial Paper Rate shall be governed by the provisions of
this Sixth Supplemental Indenture applicable to Commercial
Paper Rates and Commercial Paper Rate Periods, and Series
1995 B Bonds accruing interest at the Daily Rate or Weekly
Rate, as applicable, shall be governed by the provisions of
this Sixth Supplemental Indenture applicable to such Daily
Rates and Daily Rate Periods or Weekly Rates and Weekly Rate
Periods, as the case may be.
(b) Commercial Paper Rates. The Series 1995 B Bonds
shall accrue interest at the Commercial Paper Rate for each
Commercial Paper Rate Period as determined in accordance with
this Section 2.05(b) and interest shall be payable on the Series
1995 B Interest Payment Date for each Commercial Paper Rate
Period. The Commercial Paper Rate borne by the Series 1995 B
Bonds shall not exceed the Series 1995 B Maximum Rate. No
Commercial Paper Rate Period may be established which (i) is less
than one day or exceeds 270 days; (ii) extends beyond the day
preceding the Maturity Date; (iii) if a Standby Purchase
Agreement is then in effect, exceeds the maximum number of days'
interest coverage provided by such Standby Purchase Agreement
minus five days or extends beyond the remaining term of such
Standby Purchase Agreement minus five days; or (iv) if the Series
1995 B Remarketing Agent has given or received notice of any
conversion to a Term Rate Period, exceeds the remaining number of
days prior to the Series 1995 B Conversion Date or, if the
Remarketing Agent has given or received notice of any conversion
to a Daily Rate or Weekly Rate, exceeds (A) the period that will
enable the Commercial Paper Rate Periods for all Series 1995 B
Bonds to end on the day before the Series 1995 B Conversion Date
or (B) the period that, based on the Series 1995 B Remarketing
Agent's judgment, will best promote an orderly transition to the
next Series 1995 B Interest Rate Period.
Subject to the foregoing paragraph, Commercial Paper
Rates on and Commercial Paper Rate Periods for the Series 1995 B
Bonds shall be determined as follows:
(i) The Commercial Paper Rate on a Series 1995
B Bonds for a specific Commercial Paper Rate Period shall be
the rate established by the Series 1995 B Remarketing Agent
no later than 1:00 p.m. (New York City time) on the first
Series 1995 B Business Day of that Commercial Paper Rate
Period as the minimum rate of interest necessary, in the
judgment of the Series 1995 B Remarketing Agent, to enable
the Series 1995 B Remarketing Agent to sell such Series 1995
B Bond on that day at a price equal to the principal amount
thereof. The Commercial Paper Rate shall be provided to the
Trustee by the Series 1995 B Remarketing Agent by telephonic
or Electronic notice by 1:00 p.m., New York City time, on
the day it is established.
(ii) Each Commercial Paper Rate Period
applicable to a Series 1995 B Bond shall be determined by
the Series 1995 B Remarketing Agent on or prior to the first
Series 1995 B Business Day of such Commercial Paper Rate
Period (but no later than 1:00 p.m. (New York City time) on
the first Series 1995 B Business Day of the Commercial Paper
Rate Period) as that period which will, in the judgment of
the Series 1995 B Remarketing Agent, produce the greatest
likelihood of the lowest net interest cost during the term
of the Series 1995 B Bonds and shall commence on a Series
1995 B Business Day and end on a day preceding a Series 1995
B Business Day or the day preceding the Maturity Date. Each
Series 1995 B Bond may accrue interest at a different
Commercial Paper Rate and for a Commercial Paper Rate Period
different from any other Series 1995 B Bond. The Commercial
Paper Rate Period shall be provided to the Trustee by the
Series 1995 B Remarketing Agent by telephonic or Electronic
notice by 1:00 p.m., New York City time, on the day it is
established.
The Series 1995 B Remarketing Agent may, in the
reasonable exercise of its judgment, (1) determine
Commercial Paper Rate Periods that result in Commercial
Paper Rates on the Series 1995 B Bonds that are higher than
would be borne by Series 1995 B Bonds with shorter
Commercial Paper Rate Periods in order to increase the
likelihood of achieving the lowest net interest cost during
the term of the Series 1995 B Bonds by assuring the
availability of such Commercial Paper Rates for the longer
Commercial Paper Rate Periods, and (2) in view of the
uncertainties involved in anticipating Commercial Paper
Rates, establish different Commercial Paper Rate Periods for
Series 1995 B Bonds on the same date in order to achieve an
average of Commercial Paper Rate Periods that, in the
reasonable exercise of its judgment, is most likely to
achieve the lowest net interest cost during the term of the
Series 1995 B Bonds.
The determination of the Commercial Paper Rate
Periods by the Series 1995 B Remarketing Agent will be based
upon the relative market yields of Series 1995 B Bonds
accruing interest at a Commercial Paper Rate and other
securities that bear interest at a variable rate or at fixed
rates that, in the reasonable exercise of the judgment of
the Series 1995 B Remarketing Agent, are otherwise
comparable to the Series 1995 B Bonds, or any fact or
circumstance relating to the Series 1995 B Bonds or
affecting the market for the Series 1995 B Bonds or
affecting such other comparable securities in a manner that,
in the reasonable exercise of the judgment of the Series
1995 B Remarketing Agent, will affect the market for the
Series 1995 B Bonds. The Series 1995 B Remarketing Agent,
in its discretion, may consider such information and
resources as it deems appropriate in making the
determinations described in this paragraph, including
consultations with the Company, but the Series 1995 B
Remarketing Agent's determination of the Commercial Paper
Rate Period for each Series 1995 B Bond will be based solely
upon the reasonable exercise of the Series 1995 B
Remarketing Agent's judgment.
(c) Daily Rates. A Daily Rate shall be established
for each Daily Rate Period as follows:
(i) Daily Rate Periods shall commence on a
Daily Rate Conversion Date and on each Series 1995 B
Business Day thereafter until the Rate Period for the Series
1995 B Bonds is converted to another Rate Period and shall
extend to, but not include, the next succeeding Series 1995
B Business Day.
(ii) The Daily Rate for each Daily Rate Period
shall be effective from and including the commencement date
thereof and shall remain in effect to, but not including,
the next succeeding Series 1995 B Business Day. Each such
Daily Rate shall be determined not later than 10:30 a.m.,
New York City time, on the first Series 1995 B Business Day
of the Daily Rate Period to which it relates and shall be
provided to the Trustee by the Series 1995 B Remarketing
Agent by Electronic notice by 12:00 noon, New York City
time, on the day it is established; provided that no notice
need be given if the Daily Rate then in effect is to be the
Daily Rate for the next Daily Rate Period. The Daily Rate
borne by the Series 1995 B Bonds shall not exceed the Series
1995 B Maximum Rate.
(d) Weekly Rates. A Weekly Rate shall be determined
for each Weekly Rate Period as follows:
(i) Weekly Rate Periods shall commence on a
Wednesday and end on Tuesday of the following week and each
Weekly Rate Period shall be followed by another Weekly Rate
Period until the Rate Period of the Series 1995 B Bonds is
converted to another Rate Period; provided that (A) in the
case of a conversion to a Weekly Rate Period from a
different Rate Period, the Weekly Rate Period shall commence
on the Weekly Rate Conversion Date and shall end on Tuesday
of the following week; and (B) in the case of a conversion
from a Weekly Rate Period to a different Rate Period, the
last Weekly Rate Period prior to conversion shall end on the
last day immediately preceding the Series 1995 B Conversion
Date to the new Rate Period.
(ii) The Weekly Rate for each Weekly Rate Period
shall be effective from and including the commencement date
of such period and shall remain in effect through and
including the last day thereof. Each such Weekly Rate shall
be determined by the Series 1995 B Remarketing Agent not
later than 10:00 a.m., New York City time, on the
commencement date of the Weekly Rate Period to which it
relates (or if the commencement date is not a Series 1995 B
Business Day, the next succeeding Series 1995 B Business
Day). The Weekly Rate shall be provided to the Trustee by
the Series 1995 B Remarketing Agent by Electronic notice by
12:00 noon, New York City time, on the day it is
established. The Weekly Rate borne by the Series 1995 B
Bonds shall not exceed the Series 1995 B Maximum Rate.
(e) Term Rates. A Term Rate shall be determined for
each Term Rate Period as follows:
(i) Term Rate Periods shall (A) commence on a
Term Rate Conversion Date and (B) end on the day preceding
(i) the commencement date of the following Term Rate Period,
(ii) the Series 1995 B Conversion Date on which a different
Rate Period shall become effective or (iii) the Maturity
Date, provided that if a Standby Purchase Agreement is then
in effect, the first date on which the Series 1995 B Bonds
can be called for optional redemption during the proposed
Term Rate Period may not be beyond the remaining term of the
Standby Purchase Agreement minus five days and the Standby
Purchase Agreement will cover the premium, if any, which
would be included in the Purchase Price of the Series 1995 B
Bonds pursuant to Section 4.02(c) hereof if such Standby
Purchase Agreement is not extended beyond its then current
Expiration Date. Each Term Rate Period shall be followed by
another Term Rate Period of the same duration until the Rate
Period of the Series 1995 B Bonds is converted to another
Rate Period or a Term Rate Period of a different duration
(as determined by the Company) or until the day immediately
preceding the Maturity Date.
(ii) The Term Rate for each Term Rate Period
shall be effective from and including the commencement date
of such period and remain in effect through and including
the last day thereof. Each such Term Rate shall be
determined by the Series 1995 B Remarketing Agent not later
than 12:00 noon, New York City time, on the Series 1995 B
Business Day immediately preceding the commencement date of
such period and provided to the Trustee by the Series 1995 B
Remarketing Agent by Electronic notice by the close of
business on the day it is established. The Term Rate borne
by the Series 1995 B Bonds shall not exceed the Series 1995
B Maximum Rate.
(f) Bank Rate. Bank Bonds shall accrue interest at
the Bank Rate from and including the date such Series 1995 B
Bonds are purchased with moneys provided by the Standby Purchase
Agreement until (but not including) the day such Bank Bonds are
remarketed pursuant to Section 4.03 hereof and delivered to the
purchasers thereof or purchased by the Company or the day the
principal of such Bank Bonds is paid at maturity or upon
acceleration or upon redemption. After delivery to the
purchasers thereof, unless changed in accordance with the
following sentence, such Series 1995 B Bonds shall initially
accrue interest at the same Interest Rate as such Series 1995 B
Bonds accrued prior to becoming Bank Bonds (and if such Interest
Rate is a Term Rate, the initial Term Rate Period shall be of the
same duration as the Term Rate Period in effect immediately prior
to such Series 1995 B Bonds becoming Bank Bonds, unless such Term
Rate Period would extend beyond the Maturity Date, in which case
such Term Rate Period shall end on the day immediately preceding
the Maturity Date) and may thereafter be converted to other
Interest Rates in accordance with the provisions hereof. The
Company may elect to convert the Rate Period of the Series 1995 B
Bonds effective upon delivery to the purchasers thereof to a
Daily, Weekly or Commercial Paper Rate Period, by notice to the
Trustee, the Agent, and the Series 1995 B Remarketing Agent and
compliance with Sections 2.06(a)(iv) and 2.06(d)(iii) hereof.
Without limiting the obligation to pay interest on the
Bank Bonds, the Trustee shall give notice to the Securities
Depository, or its nominee, on every Series 1995 B Interest
Payment Date while Bank Bonds are outstanding that the Securities
Depository is not to pay, and will not be receiving from the
Trustee, interest on the Bank Bonds recorded on the books of the
Securities Depository for the account of the Trustee (and
identifying the principal amount of such Bank Bonds).
SECTION 2.06. Conversions Between Rate Periods. The
Company may elect to convert the Series 1995 B Bonds (other than
Bank Bonds) in whole or in part from one Rate Period to another
as follows:
(a) Series 1995 B Conversion Dates.
(i) If the conversion is from Commercial Paper
Rate Periods, the Series 1995 B Conversion Date must be the
date on which interest is payable on all of the Series 1995
B Bonds being converted and accruing interest at Commercial
Paper Rates (if the conversion is to a Daily Rate or Weekly
Rate, there may be more than one Series 1995 B Conversion
Date in accordance with Section 2.05(b) hereof).
(ii) If the conversion is from a Daily or Weekly
Rate Period, the Series 1995 B Conversion Date must be a
Series 1995 B Interest Payment Date on which interest is
payable for the Daily or Weekly Rate Period from which the
conversion is made.
(iii) If the conversion is from a Term Rate
Period, the Series 1995 B Conversion Date shall be any date
on which the Series 1995 B Bonds are also subject to
optional redemption pursuant to Section 3.01(b) hereof.
(iv) If the conversion is to a Daily Rate
Period, the Series 1995 B Conversion Date must be a Series
1995 B Business Day.
(b) Notices by Company. The Company shall give notice
of any proposed conversion to the Trustee, the Agent and the
Series 1995 B Remarketing Agent not fewer than seven Series 1995
B Business Days prior to the date the notice to bondholders must
be given pursuant to Section 2.06(c) of the proposed conversion
from a Commercial Paper, Daily, Weekly or Term Rate Period.
(c) Notices by Trustee. The Trustee shall give notice
by first class mail of the proposed conversion to the owners of
Series 1995 B Bonds accruing interest at Commercial Paper, Daily
or Weekly Rates not less than 15 days before the proposed Series
1995 B Conversion Date and to owners of Series 1995 B Bonds
accruing interest at a Term Rate not less than 30 days before the
proposed Series 1995 B Conversion Date. Such notice shall state:
(i) the proposed Series 1995 B Conversion Date
and proposed Interest Rate (i.e., whether the Series 1995 B
Bonds will accrue interest at a Daily Rate, Weekly Rate,
Commercial Paper Rate or Term Rate) to be effective on such
date;
(ii) that the Series 1995 B Bonds will be
subject to mandatory tender for purchase on the Series 1995
B Conversion Date (except in the case of conversions between
Daily and Weekly Rate Periods);
(iii) the conditions, if any, to the conversion
pursuant to Section 2.06(d) hereof;
(iv) if the Series 1995 B Bonds are in
certificated form, information with respect to required
delivery of Series 1995 B Bond certificates and payment of
the Purchase Price; and
(v) the new Series 1995 B Interest Payment
Date(s) and Series 1995 B Regular Record Dates.
(d) Conditions to Conversion. A conversion of Series
1995 B Interest Rate Periods will become effective:
(i) if the conversion is from Commercial Paper
Rate Periods, the Trustee has received, prior to the date on
which notice of conversion is required to be given to owners
of Series 1995 B Bonds, written confirmation from the Series
1995 B Remarketing Agent that it has not established and
will not establish any Commercial Paper Rate Periods
extending beyond the day before the Series 1995 B Conversion
Date (or Series 1995 B Conversion Dates if the Series 1995 B
Remarketing Agent will be establishing Commercial Paper Rate
Periods pursuant to Section 2.05(b) hereof in connection
with a conversion to a Daily or Weekly Rate);
(ii) if the conversion is from Commercial Paper,
Daily or Weekly Rate Periods or a Term Rate Period of one
year to a Term Rate Period exceeding one year, or from a
Term Rate Period exceeding one year to a Commercial Paper,
Daily or Weekly Rate Period or a Term Rate Period of one
year, the Trustee has been provided, no later than one
Series 1995 B Business Day before the Series 1995 B
Conversion Date, a Favorable Opinion of Series 1995 B Bond
Counsel with respect to the conversion;
(iii) if a Standby Purchase Agreement will be
held by the Trustee after any Series 1995 B Conversion Date,
such agreement (A) will cover the principal of and interest
which will accrue on the outstanding Series 1995 B Bonds for
35 days in the case of conversion to a Daily or Weekly Rate
Period, 275 days (or such fewer number of days as may be
determined by the Company) in the case of conversion to a
Commercial Paper Rate Period, and 185 days in the case of
conversion to a Term Rate Period, and (B) in the case of
conversion to a Term Rate Period, (i) will extend for a
period of at least five days beyond the first date on which
the Series 1995 B Bonds can be called for optional
redemption and (ii) will cover the premium, if any, which
would be included in the Purchase Price of the Series 1995 B
Bonds pursuant to Section 4.02(c) hereof if such Standby
Purchase Agreement is not extended beyond its then current
Expiration Date; or
(iv) if a Standby Purchase Agreement is then in
effect and the Purchase Price payable on the Series 1995 B
Conversion Date includes a premium, the Trustee has
received, prior to the date on which notice of conversion is
required to be given to the owners, written confirmation
from the Agent that such premium would be included in the
Purchase Price paid by the Series 1995 B Bank if required to
purchase the Series 1995 B Bonds under the Standby Purchase
Agreement on the proposed Series 1995 B Conversion Date.
SECTION 2.07. Series 1995 B Registrar; Series 1995 B
Register. Notwithstanding any other provision of the Indenture,
the Issuer shall designate, at the direction of the Company, one
or more persons to act as "Series 1995 B Registrar" for the
Series 1995 B Bonds; provided that the Series 1995 B Registrar
appointed for the Series 1995 B Bonds shall be either the
Trustee, the Series 1995 B Paying Agent or a person which would
meet the requirements for qualification as a successor trustee
imposed by Section 9.08 of the Indenture (other than the
requirement that it be within the State of Indiana). The Issuer
hereby appoints the Trustee as Series 1995 B Registrar. Any
person other than the Trustee undertaking to act as Series 1995 B
Registrar shall first execute a written agreement, in form
satisfactory to the Trustee and the Company, to perform the
duties of a Series 1995 B Registrar under the Indenture, which
agreement shall be filed with the Trustee and the Company.
The Series 1995 B Registrar shall act as registrar and
transfer agent for the Series 1995 B Bonds. The Issuer shall
cause to be kept at an office of the Series 1995 B Registrar a
register (herein sometimes referred to as the "Series 1995 B
Register") in which, subject to such reasonable regulations as
it, the Trustee or the Series 1995 B Registrar may prescribe, the
Issuer shall provide for the registration of the Series 1995 B
Bonds and for the registration of transfers of the Series 1995 B
Bonds. The Issuer shall cause the Series 1995 B Registrar to
designate, by a written notification to the Trustee, a specific
office location (which may be changed from time to time, upon
similar notification) at which the Series 1995 B Register is
kept.
The Series 1995 B Registrar shall at any time as reasonably
requested by the Trustee, the Series 1995 B Paying Agent, the
Company, each Series 1995 B Bank or the Series 1995 B Remarketing
Agent, certify and furnish to the Trustee, the Series 1995 B
Paying Agent, the Company, each Series 1995 B Bank or the Series
1995 B Remarketing Agent, the names, addresses and holdings of
holders of the Series 1995 B Bonds and any other relevant
information reflected in the Series 1995 B Register, and the
Trustee, the Series 1995 B Remarketing Agent and the Series 1995
B Paying Agent shall for all purposes be fully entitled to rely
upon the information so furnished to them and shall have no
liability or responsibility in connection with the preparation
thereof.
SECTION 2.08. Transfer and Exchange of Series 1995 B Bonds.
Upon surrender for registration of transfer of any Series 1995 B
Bond at the designated office of the Series 1995 B Registrar, the
Issuer shall execute and the Trustee or its Authenticating Agent
shall authenticate and deliver in the name of the transferee or
transferees, one or more new fully registered Series 1995 B Bonds
of authorized denomination or the aggregate principal amount
which the registered owner is entitled to receive.
At the option of the owner, Series 1995 B Bonds may be
exchanged for other Series 1995 B Bonds of any other authorized
denomination, of a like aggregate principal amount and accruing
interest at the same Interest Rate, upon surrender of the Series
1995 B Bonds to be exchanged at the designated office of the
Series 1995 B Registrar. Whenever any Series 1995 B Bonds are so
surrendered for exchange, the Issuer shall execute, and the
Trustee or the Authenticating Agent shall authenticate and
deliver, the Series 1995 B Bonds which the bondholder making the
exchange is entitled to receive. The seventh paragraph of
Section 2.05 of the 1984 Indenture is not applicable to the
Series 1995 B Bonds.
All Series 1995 B Bonds presented for registration of
transfer or exchange shall be accompanied by a written instrument
or instruments of transfer or authorization for exchange, in form
and with guaranty of signature satisfactory to the Series 1995 B
Registrar, duly executed by the owner or by his attorney duly
authorized in writing, and such documentation as the Series 1995
B Registrar shall reasonably require.
No service charge shall be made to a bondholder for any
exchange or registration of transfer of Series 1995 B Bonds, but
the Issuer or the Series 1995 B Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto.
New Series 1995 B Bonds delivered upon registration of
transfer or exchange shall be valid obligations of the Issuer,
evidencing the same debt as the Series 1995 B Bonds surrendered,
shall be secured by the Indenture and shall be entitled to all of
the security and benefits thereof to the same extent as the
Series 1995 B Bonds surrendered.
Except as provided above or in Article IV hereof, the
Trustee shall not be required to effect any transfer or exchange
during the 15 days immediately preceding the date of mailing of
any notice of redemption or at any time following the mailing of
any such notice in the case of Series 1995 B Bonds selected for
such redemption.
SECTION 2.09. Authenticating Agent. If the Series 1995 B
Registrar is other than the Trustee, the Trustee may appoint the
Series 1995 B Registrar as an Authenticating Agent with the power
to act on the Trustee's behalf and subject to its direction in
the authentication and delivery of Series 1995 B Bonds in
connection with the registration of transfers and exchanges and
the authentication and delivery of Series 1995 B Bonds by an
Authenticating Agent pursuant to this Section shall, for all
purposes of the Indenture, be deemed to be the authentication and
delivery "by the Trustee".
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible as a Series 1995 B Registrar under Section
2.07 hereof, without the execution or filing of any further act
on the part of the parties hereto or the Authenticating Agent or
such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee, the Issuer and the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent, the Issuer and the Company. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section, the Trustee may,
with the consent of the Company (which shall not be unreasonably
withheld) appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Issuer, and shall mail
notice of such appointment to all owners of Series 1995 B Bonds
as the names and addresses of such owners appear on the Series
1995 B Register.
SECTION 2.10. Payment of Principal and Interest; Interest
Rights Preserved.
(a) Notwithstanding any other provision of the
Indenture, the principal or redemption price of any Series 1995 B
Bond shall be payable upon presentation and surrender of such
Series 1995 B Bonds to the principal office of the Series 1995 B
Paying Agent. During Commercial Paper, Daily or Weekly Rate
Periods, the principal or redemption price of the Series 1995 B
Bonds shall be payable in immediately available funds. During
Term Rate Periods the principal or redemption price of the Series
1995 B Bonds shall be payable by check in clearinghouse funds,
provided that any registered owner of $1,000,000 or more in
aggregate principal amount of the Series 1995 B Bonds may, upon
written request given to the Series 1995 B Paying Agent at least
five Series 1995 B Business Days prior to the maturity or
redemption date designating an account in a bank within the
continental United States, be paid by wire transfer of
immediately available funds. Such payments shall be made to the
registered owner of the Series 1995 B Bond so delivered, as shown
in the Series 1995 B Register maintained by the Series 1995 B
Registrar.
(b) Subject to the provisions of Section 2.05 hereof
and notwithstanding any other provision of the Indenture, each
Series 1995 B Bond shall accrue interest and be payable as to
interest as follows:
(i) Each Series 1995 B Bond shall accrue
interest (at the applicable rate determined pursuant to
Section 2.05 hereof) (A) from the date of authentication, if
authenticated on a Series 1995 B Interest Payment Date to
which interest has been paid or duly provided for, or (B)
from the last preceding Series 1995 B Interest Payment Date
to which interest has been paid in full or duly provided for
(or the date of initial issuance thereof if no interest
thereon has been paid or duly provided for) in all other
cases.
(ii) Subject to the provisions of paragraph (c)
below, the interest due on any Series 1995 B Bond on any
Series 1995 B Interest Payment Date shall be paid to the
registered owner of such Series 1995 B Bond as shown on the
registration books kept by the Series 1995 B Registrar as of
the Series 1995 B Regular Record Date. The amount of
interest so payable on any Series 1995 B Interest Payment
Date shall be computed (A) on the basis of a 365- or 366-day
year for the number of days actually elapsed during Daily
Rate Periods; (B) on the basis of a 365- or 366-day year for
the number of days actually elapsed based on the calendar
year in which the Commercial Paper Rate Period or the Weekly
Rate Period commences, during Commercial Paper Rate Periods
or Weekly Rate Periods; and (C) on the basis of a 360-day
year of twelve 30-day months during Term Rate Periods.
(iii) Subject to Section 2.10(b)(v) hereof, all
payments of interest on the Series 1995 B Bonds accruing
interest at Term Rates shall be paid to the registered
owners entitled thereto by check in clearinghouse funds
mailed on the Series 1995 B Interest Payment Date, provided
that any registered owner of $1,000,000 or more in aggregate
principal amount of the Series 1995 B Bonds may, upon
written request given to the Series 1995 B Paying Agent at
least five Series 1995 B Business Days prior to any Series
1995 B Interest Payment Date designating an account in a
bank within the continental United States, be paid by wire
transfer of immediately available funds.
(iv) Subject to Section 2.10(b)(v) hereof, all
payments of interest on the Series 1995 B Bonds accruing
interest at Commercial Paper, Daily or Weekly Rates shall be
paid to the registered owners entitled thereto in
immediately available funds by wire transfer to a bank
within the continental United States as directed by the
registered owner in writing prior to the time of payment
with respect to Series 1995 B Bonds accruing interest at a
Commercial Paper Rate or five Series 1995 B Business Days
prior to the Series 1995 B Interest Payment Date with
respect to Series 1995 B Bonds accruing interest at Daily or
Weekly Rates.
(v) Interest (A) accrued during any Commercial
Paper Rate Period or (B) due at the maturity or redemption
of the Series 1995 B Bonds shall be paid only upon
presentation and surrender of Series 1995 B Bonds.
(vi) Payments of interest on Bank Bonds shall be
made in accordance with the provisions of the Standby
Purchase Agreement.
(c) Any interest on any Series 1995 B Bond which is
payable, but is not punctually paid or provided for, on any
Series 1995 B Interest Payment Date and within any applicable
grace period (herein called "Defaulted Interest") shall cease to
be payable to the owner of such Series 1995 B Bond on the
relevant Series 1995 B Regular Record Date by virtue of having
been such owner, and such Defaulted Interest shall be paid to the
person in whose name the Series 1995 B Bond is registered at the
close of business on a special record date to be fixed by the
Trustee, such date to be no more than 15 nor fewer than 10 days
prior to the date of proposed payment. The Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage
prepaid, to each owner of Series 1995 B Bonds at his address as
it appears in the Series 1995 B Register, not fewer than 10 days
prior to such special record date.
Subject to the foregoing provisions of this Section,
each Series 1995 B Bond delivered under the Indenture upon
registration of transfer of or exchange for or in lieu of any
other Bond shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Series 1995 B
Bond.
SECTION 2.11. Persons Deemed Owners. The Issuer, the
Trustee, the Series 1995 B Paying Agent, the Series 1995 B
Registrar and any Authenticating Agent may deem and treat the
person in whose name any Series 1995 B Bond is registered in the
Series 1995 B Register as the absolute owner thereof (whether or
not such Series 1995 B Bond shall be overdue and notwithstanding
any notation of ownership or other writing thereon made by anyone
other than the Issuer, the Trustee, the Series 1995 B Paying
Agent, the Series 1995 B Registrar or the Authenticating Agent)
for the purpose of receiving payment of or on account of the
principal of and (subject to Section 2.10 hereof) interest on,
such Series 1995 B Bonds, and for all other purposes; and neither
the Issuer, the Trustee, the Series 1995 B Paying Agent, the
Series 1995 B Registrar, the Series 1995 B Remarketing Agent nor
the Authenticating Agent shall be affected by any notice to the
contrary. All such payments so made to any such registered
owner, or upon his order, shall be valid and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Series 1995 B Bond.
SECTION 2.12. Book Entry System. Initially, one
certificate for the Series 1995 B Bonds will be issued and
registered to the Securities Depository. The Issuer and the
Trustee may enter into a Letter of Representations (as defined
below) relating to a book entry system to be maintained by the
Securities Depository with respect to the Series 1995 B Bonds.
In the event that (a) the Securities Depository determines
not to continue to act as a securities depository for the Series
1995 B Bonds by giving notice to the Trustee and the Issuer
discharging its responsibilities hereunder, or (b) the Issuer
determines (at the direction of the Company) (i) that beneficial
owners of Series 1995 B Bonds shall be able to obtain
certificated Series 1995 B Bonds, or (ii) to select a new
Securities Depository, then the Trustee shall, at the direction
of the Company, attempt to locate another qualified securities
depository to serve as Securities Depository or authenticate and
deliver certificated Series 1995 B Bonds to the beneficial owners
or to the Securities Depository participants on behalf of
beneficial owners substantially in the form provided for in this
Section 2.12. In delivering certificated Series 1995 B Bonds,
the Trustee shall be entitled to rely on the records of the
Securities Depository as to the beneficial owners or the records
of the Securities Depository participants acting on behalf of
beneficial owners. Such certificated Series 1995 B Bonds will
then be registrable, transferable and exchangeable as set forth
in the Indenture.
So long as there is a Securities Depository for the Series
1995 B Bonds, (1) it or its nominee shall be the registered owner
of the Series 1995 B Bonds; (2) notwithstanding anything to the
contrary in the Indenture, determinations of persons entitled to
payment of principal or purchase price, premium, if any, and
interest, transfers of ownership and exchanges and receipt of
notices shall be the responsibility of the Securities Depository
and shall be effected pursuant to rules and procedures
established by the Securities Depository; (3) the Issuer, the
Company and the Trustee shall not be responsible or liable for
maintaining, supervising or reviewing the records maintained by
the Securities Depository, its participants or persons acting
through such participants; (4) except as provided in the last
paragraphs of Section 10.02 and 11.02 of the Indenture,
references in the Indenture to owners or registered owners of the
Series 1995 B Bonds shall mean the Securities Depository or its
nominee and shall not mean the beneficial owners of the Series
1995 B Bonds; and (5) in the event of any inconsistency between
the provisions of the Indenture and the provisions of the Letter
of Representations, the provisions of the Letter of
Representations, except to the extent set forth in this paragraph
and the next preceding paragraph, shall control.
For purposes of this Section, the following term shall have
the following meaning:
"Letter of Representations" means the Letter of
Representations from the Issuer, the Trustee and the Series 1995
B Remarketing Agent to the Securities Depository and (with the
consent of the Company) any amendments thereto, or successor
agreements between the Issuer, the Trustee and the Series 1995 B
Remarketing Agent and any successor Securities Depository,
relating to a book entry system to be maintained by the
Securities Depository with respect to the Series 1995 B Bonds.
SECTION 2.13. Payments of days that are not Series 1995 B
Business Days. In any case where the date of payment of any
principal or purchase price of or premium or interest on any
Series
1995 B Bond shall be a day that is not a Series 1995 B Business
Day, then such payment need not be made on such date but may be
made on the next succeeding Series 1995 B Business Day with the
same force and effect as if made on the date of payment, and no
interest on such payment shall accrue for the period after such
date.
ARTICLE III
REDEMPTION OF SERIES 1995 B BONDS
SECTION 3.01. Optional Redemption.
(a) Series 1995 B Bonds accruing interest at
Commercial Paper, Daily or Weekly Rates are subject to optional
redemption (at the election of the Company without any further
action by the Issuer) at any time, in whole or in part (less than
all of the Series 1995 B Bonds to be redeemed to be selected by
lot), on any Series 1995 B Interest Payment Date with respect to
such Series 1995 B Bonds at a redemption price equal to the
principal amount thereof, together with accrued interest to the
redemption date.
(b) Series 1995 B Bonds accruing interest at a Term
Rate are subject to optional redemption (at the election of the
Company without any further action by the Issuer), in whole or in
part (less than all of the Series 1995 B Bonds to be redeemed to
be selected by lot), (i) on the day immediately following the end
of each Term Rate Period at the redemption price of 100% of the
principal amount thereof together with accrued interest, if any,
to the redemption date and (ii) at any time on and after the
dates and at the Redemption Prices determined as set forth below
plus accrued interest, if any, to the redemption date:
<TABLE>
<CAPTION>
Commencement of Redemption Price
Length of Term Rate Period Redemption Period as Percentage of Principal
<C> <C> <C>
Greater than or equal to 15 Tenth anniversary of the 102%, declining by 1% on
years commencement of Term Rate each succeeding anniversary
Period of the first day of the
redemption period until
reaching 100% and thereafter
at 100%
Less than 15 years and Seventh anniversary of the 102%, declining by 1% on
greater than or equal to 10 commencement of Term Rate each succeeding anniversary
years Period of the first day of the
redemption period until
reaching 100% and thereafter
at 100%
Less than 10 years but Fifth anniversary of the 101%, declining by 0.5% on
greater than 5 years commencement of Term Rate each succeeding anniversary
Period of the first day of the
redemption period until
reaching 100% and thereafter
at 100%
Less than or equal to 5 Series 1995 B Bonds not
years subject to optional
redemption until
commencement of next Term
Rate Period
</TABLE>
The optional redemption dates and redemption prices set
forth above may be changed by a supplemental indenture approved
by the Company and filed with the Trustee and provided to the
Series 1995 B Remarketing Agent, provided that any such
supplemental indenture shall be accompanied by a Favorable
Opinion of Series 1995 B Bond Counsel.
(c) Bank Bonds are subject to optional redemption (at
the election of the Company without any further action by the
Issuer), in whole or in part, at any time at the principal amount
thereof, together with accrued interest to the redemption date.
(d) Any notice of redemption pursuant to this Section
3.01 shall, unless at the time such notice is given the Series
1995 B Bonds are deemed to have been paid in accordance with
Section 7.01 of the Indenture, state that the redemption to be
effected is conditioned upon the receipt by the Series 1995 B
Paying Agent on or prior to the redemption date of moneys
sufficient to pay the principal of and premium, if any, and
accrued interest on the Series 1995 B Bonds to be redeemed and
that if such moneys are not received such notice shall be of no
force or effect and such Series 1995 B Bonds shall not be
required to be redeemed. In the event that such notice contains
such a condition and moneys sufficient to pay the principal of
and premium, if any, and interest on the Series 1995 B Bonds are
not received by the Series 1995 B Paying Agent on or prior to the
redemption date, the redemption shall not be made and the Trustee
shall within a reasonable time thereafter give notice, in the
manner in which the notice of redemption was given, that such
moneys were not so received.
SECTION 3.02. Extraordinary Optional Redemption. Series
1995 B Bonds accruing interest at a Term Rate are subject to
extraordinary optional redemption (at the election of the Company
without further action of the Issuer) at any time in whole, but
not in part, in the event of the exercise by the Company of its
option to prepay the entire purchase price of the Project under
Section 8.1(b) through (e) of the Agreement of Sale, upon payment
of 100% of the principal amount thereof plus interest accrued to
the redemption date.
SECTION 3.03. Mandatory Redemption of Bank Bonds.
(a) If any Series 1995 B Bonds are Bank Bonds on the
Term-Out Date, then one tenth of the principal amount of such
Bank Bonds shall be redeemed on the day six months after the
Term-Out Date and every six months thereafter until all such Bank
Bonds are redeemed, at a redemption price equal to the principal
amount thereof plus accrued and unpaid interest thereon to the
redemption date. The Term-Out Date is the earlier of (i) the
first anniversary of the date on which such Series 1995 B Bonds
were purchased by the Series 1995 B Bank, (ii) the Expiration
Date or (iii) the date on which the commitment of the Series 1995
B Bank to purchase Series 1995 B Bonds pursuant to the Standby
Purchase Agreement is terminated in accordance with its terms.
This mandatory redemption provision does not relieve the Series
1995 B Remarketing Agent of its obligation to continue its
efforts to remarket Bank Bonds that have not been redeemed. For
purposes of determining which Bank Bonds have been remarketed on
any date, it is assumed that they have been remarketed on a pro
rata basis. If at any time, Bank Bonds are subject to mandatory
redemption under both this Section 3.03(a) and Section 3.03(b)
hereof, Section 3.03(b) hereof shall govern the redemption of the
Bank Bonds.
(b) If the Trustee receives notice from any Series
1995 B Bank that an Insurer Default has occurred, all Bank Bonds
shall be redeemed on the ninetieth day after receipt of such
notice at a redemption price equal to the principal amount
thereof plus accrued and unpaid interest thereon to the
redemption date; except that the Bank Bonds are not required to
be redeemed if the Trustee has received notice prior to the
redemption date from the same Series 1995 B Bank that (i) the
Insurer Default has been waived by that Series 1995 B Bank; (ii)
the Insurer Default has been cured; or (iii) an insurance policy
provided by an additional or replacement bond insurer would
result in a long-term rating on the Series 1995 B Bonds by any
two of S&P, Moody's or Fitch of AAA, Aaa or AAA, respectively,
(or their equivalent rating).
"Insurer Default" means any of the following events:
(i) The occurrence and continuance of one or
more of the following events: (A) the issuance of an order
of rehabilitation, liquidation or dissolution of the Bond
Insurer; (B) the commencement by the Bond Insurer of a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect including, without limitation,
the appointment of a trustee, receiver, liquidator,
custodian or other similar official for itself or any
substantial part of its property; (C) the consent of the
Bond Insurer to or the acquiescence by the Bond Insurer in
any case or proceeding described in the preceding clause (B)
that is commenced against it; (D) the making by the Bond
Insurer of an assignment for the benefit of creditors; (E)
the failure of the Bond Insurer or the admission by the Bond
Insurer in writing of its inability to generally pay its
debts or claims as they become due; (F) the initiation by
the Bond Insurer of any actions to authorize any of the
foregoing; (G) the commencement of an involuntary case or
other proceeding against the Bond Insurer seeking
liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case remaining undismissed
and unstayed for a period of 60 days; or (H) the entering of
an order for relief against the Bond Insurer under the
federal bankruptcy laws as low or hereafter in effect;
(ii) The Bond Insurer shall fail, wholly or
partially, to make a payment when and as required under the
provisions of the Series 1995 B Insurance Policy (including
without limitation, principal of, and interest at the Bank
Rate on, Bank Bonds);
(iii) The Series 1995 B Insurance Policy is
surrendered, canceled or terminated, or amended or modified
in any material respect, without each Series 1995 B Bank's
prior written consent; or
(iv) A court of competent jurisdiction enters a
final nonappealable judgment that the Series 1995 B
Insurance Policy is not valid and binding on or enforceable
against the Bond Insurer.
(c) The Trustee shall effect any redemption of Bank
Bonds required by Section 3.03(a) or (b) hereof without any
further authorization from the Issuer or the Company. The
Trustee shall promptly provide a copy of any notice received
under Section 3.03(b), and shall provide notice of redemption
under Section 3.03(a) or (b) on the date thereof, to the Series
1995 B Banks that are the owners of the Bank Bonds, the Agent,
the Issuer, the Series 1995 B Paying Agent, the Series 1995 B
Remarketing Agent, the Bond Insurer and the Company. No further
notice of redemption is required in connection with, and the
provisions of Section 3.02 of the Indenture do not apply to, the
redemption of Bank Bonds under this Section 3.03.
ARTICLE IV
TENDER AND PURCHASE OF SERIES 1995 B BONDS
SECTION 4.01. Optional Tenders for Purchase.
(a) Purchase Dates. The owners of Series 1995 B Bonds
accruing interest at Daily, Weekly or Term Rates may elect to
have their Series 1995 B Bonds (or portions thereof in amounts
equal to denominations then authorized pursuant to Section 2.01
hereof) purchased at the following Purchase Price on the
following Purchase Dates:
(i) Series 1995 B Bonds accruing interest at
Daily Rates may be tendered for purchase at a Purchase Price
equal to 100% of the principal amount thereof plus accrued
interest payable on any Series 1995 B Business Day prior to
conversion from a Daily Rate Period to a different Rate
Period, upon irrevocable written or Electronic notice of
tender given to the Series 1995 B Paying Agent, not later
than 11:00 a.m., New York City time, on the Purchase Date.
(ii) Series 1995 B Bonds accruing interest at
Weekly Rates may be tendered for purchase at a Purchase
Price equal to 100% of the principal amount thereof plus
accrued interest payable on any Series 1995 B Business Day
prior to conversion from a Weekly Rate Period to a different
Rate Period upon irrevocable written or Electronic notice of
tender to the Series 1995 B Paying Agent, not later than
5:00 p.m., New York City time, on a Series 1995 B Business
Day not fewer than seven days prior to the Purchase Date.
(iii) Series 1995 B Bonds accruing interest at a
Term Rate may be tendered for purchase on the commencement
date of the succeeding Rate Period for such Series 1995 B
Bonds at a Purchase Price equal to 100% of the principal
amount thereof upon irrevocable written or Electronic notice
of tender to the Series 1995 B Paying Agent, not later than
5:00 p.m., New York City time, on a Series 1995 B Business
Day which is not fewer than seven days prior to the Purchase
Date,
it being understood that pursuant to Section 4.02(b) hereof, the
Series 1995 B Bonds may also be subject to mandatory tender on
such date, in which case the provisions of Section 4.02(b) hereof
shall govern the purchase.
(b) Notice of Tender. Each notice of tender shall:
(i) in the case of a written notice, be
delivered to the Series 1995 B Paying Agent at its principal
office and be in form satisfactory to the Series 1995 B
Paying Agent;
(ii) state, whether delivered in writing or
Electronically (A) the principal amount of the Series 1995 B
Bond to which the notice relates; (B) that the owner of the
Series 1995 B Bond irrevocably demands purchase of such
Series 1995 B Bond or a specified portion thereof in an
amount equal to a denomination then authorized pursuant to
Section 2.01 hereof; (C) the date on which such Series 1995
B Bond or portion is to be purchased; and (D) payment
instructions with respect to the Purchase Price; and
(iii) automatically constitute, whether delivered
in writing or Electronically (A) an irrevocable offer to
sell the Series 1995 B Bond (or portion thereof) to which
the notice relates on the Purchase Date at a Purchase Price
equal to the principal amount of such Series 1995 B Bonds
(or portion thereof) plus, with respect to Series 1995 B
Bonds accruing interest at a Daily Rate or a Weekly Rate,
any interest thereon accrued and unpaid as of the Purchase
Date; (B) an irrevocable authorization and instruction to
the Series 1995 B Paying Agent to effect transfer of such
Series 1995 B Bond (or portion thereof) upon payment of the
Purchase Price to the Series 1995 B Paying Agent on the
Purchase Date; (C) an irrevocable authorization and
instruction to the Series 1995 B Paying Agent to effect the
exchange of the Series 1995 B Bond to be purchased in whole
or in part for Series 1995 B Bonds in other authorized
denominations hereunder in an equal aggregate principal
amount so as to facilitate the sale of such Series 1995 B
Bonds (or portion thereof to be purchased); and (D) an
acknowledgment that such owner of Series 1995 B Bonds will
have no further rights with respect to such Series 1995 B
Bond (or portion thereof) upon payment of the Purchase Price
thereof to the Series 1995 B Paying Agent on the Purchase
Date, except for the right of such owner to receive such
Purchase Price upon delivery of such Series 1995 B Bond to
the Series 1995 B Paying Agent, and that after the Purchase
Date such owner will hold any undelivered certificate as
agent for the Series 1995 B Paying Agent. The determination
of the Series 1995 B Paying Agent as to whether a notice of
tender has been properly delivered pursuant to the foregoing
shall be conclusive and binding upon the owner of the Series
1995 B Bonds.
(c) Bonds to be Remarketed. Not later than 11:00
a.m., New York City time, on the Series 1995 B Business Day
immediately following the date of receipt of any notice of tender
(or immediately upon such receipt, in the case of Series 1995 B
Bonds accruing interest at Daily Rates), the Series 1995 B Paying
Agent shall notify, by telephone, promptly confirmed in writing,
the Company, the Trustee and the Series 1995 B Remarketing Agent
of the principal amount of Series 1995 B Bonds (or portions
thereof) to be purchased and the Purchase Date.
SECTION 4.02. Mandatory Tenders for Purchase.
(a) Commercial Paper Rate Bonds. Each Series 1995 B
Bond accruing interest at a Commercial Paper Rate is subject to
mandatory tender for purchase on each Series 1995 B Interest
Payment Date applicable to such Series 1995 B Bond, at a Purchase
Price equal to 100% of the principal amount thereof, plus
interest accrued during such Commercial Paper Rate Period. The
owner of any Series 1995 B Bond accruing interest at a Commercial
Paper Rate shall provide the Series 1995 B Paying Agent with
written payment instructions for the Purchase Price of its Series
1995 B Bond on or before tender thereof to the Series 1995 B
Paying Agent.
(b) Conversions between Rate Periods. Series 1995 B
Bonds to be converted from one Rate Period to a different Rate
Period (except conversions from the Daily Rate to the Weekly Rate
or from the Weekly Rate to the Daily Rate) or from a Term Rate
Period to a Term Rate Period of different duration, are subject
to mandatory tender for purchase on the Series 1995 B Conversion
Date at a Purchase Price equal to 100% of the principal amount
thereof plus accrued interest; provided that the Purchase Price
for Series 1995 B Bonds converted from a Term Rate Period on a
date when such Series 1995 B Bonds are also subject to optional
redemption at a premium shall include an amount equal to the
premium that would be payable if such Series 1995 B Bonds were
redeemed on such date.
(c) Prior to Expiration Date. Series 1995 B Bonds are
subject to mandatory tender for purchase on the Series 1995 B
Business Day next preceding the Expiration Date of the current
Standby Purchase Agreement, if any, unless at least 25 days (or
such shorter period as shall be acceptable to the Trustee) prior
to such Series 1995 B Business Day, (i) the Trustee has received
notice that the Standby Purchase Agreement has been extended;
(ii) the Trustee has received an Alternate Liquidity Facility
pursuant to Section 4.05 hereof and written evidence with respect
to the ratings of the Series 1995 B Bonds under Section
4.14(a)(3)(i) of the Agreement; or (iii) if the Standby Purchase
Agreement is not extended and no Alternate Liquidity Facility is
provided, the Trustee has received written evidence with respect
to the ratings of the Series 1995 B Bonds under Section
4.14(a)(3)(i) of the Agreement, at a Purchase Price equal to 100%
of the principal amount thereof plus accrued interest, plus, if
the Series 1995 B Bonds accrue interest at a Term Rate, the
premium, if any, which would be payable if the Series 1995 B
Bonds were optionally redeemed on the mandatory tender date.
(d) Notice of Mandatory Tender. The Series 1995 B
Paying Agent shall give notice of such mandatory tender for
purchase other than pursuant to Section 4.02(a) hereof to the
owners of Series 1995 B Bonds by first class mail, not less than
15 days before the mandatory tender date. If the Series 1995 B
Bonds are in certificated form, such notice shall include
information with respect to required delivery of Series 1995 B
Bond certificates and payment of the Purchase Price.
SECTION 4.03. Remarketing and Purchase.
(a) Remarketing of Tendered Series 1995 B Bonds.
Unless otherwise instructed by the Company, the Series 1995 B
Remarketing Agent shall offer for sale and use its best efforts
to find purchasers for all Series 1995 B Bonds or portions
thereof for which notice of tender has been received by the
Series 1995 B Remarketing Agent pursuant to Section 4.01(c)
hereof or which are subject to mandatory tender. While the
Series 1995 B Bonds are in book entry only form, the Series 1995
B Remarketing Agent will make payment of the Purchase Price for
tendered Series 1995 B Bonds in accordance with the procedures
established by the Securities Depository. If the book entry only
system is not in effect, the terms of any sale by the Series 1995
B Remarketing Agent shall provide for the payment of the Purchase
Price for tendered Series 1995 B Bonds by the Series 1995 B
Remarketing Agent to the Series 1995 B Paying Agent (i) in
immediately available funds at or before 3:00 p.m., New York City
time, on the Purchase Date, in the case of Series 1995 B Bonds
accruing interest at Commercial Paper Rates; (ii) in immediately
available funds at or before 4:00 p.m., New York City time, on
the Purchase Date, in the case of Series 1995 B Bonds accruing
interest at Daily Rates or Weekly Rates; and (iii) in
clearinghouse funds at or before 12:00 noon, New York City time,
on the Purchase Date, in the case of Series 1995 B Bonds accruing
interest at Term Rates. The Series 1995 B Remarketing Agent
shall not sell any Series 1995 B Bond as to which a notice of
conversion from one type of Rate Period to another has been given
by the Trustee unless the Series 1995 B Remarketing Agent has
advised the purchaser of the conversion. The Series 1995 B
Remarketing Agent shall not remarket any Series 1995 B Bonds
pursuant to this Section if an Event of Default described in
Section 8.01(a), (b) or (k) of the Indenture shall have occurred
and be continuing under the Indenture with respect to the Series
1995 B Bonds or the Series 1995 B Bonds have been declared
immediately due and payable pursuant to Section 8.02 of the
Indenture and such declaration has not been annulled pursuant to
Section 8.02 of the Indenture.
(b) Purchase of Tendered Series 1995 B Bonds.
(i) Notice. At or before 3:00 p.m., New York
City time, on the Series 1995 B Business Day immediately
preceding the Purchase Date of tendered Series 1995 B Bonds
accruing interest at Term Rates (or 12:30 p.m., New York
City time, on the Purchase Date in the case of Series 1995 B
Bonds accruing interest at Daily, Weekly or Commercial Paper
Rates), the Series 1995 B Remarketing Agent shall give
Electronic notice to the Trustee of the principal amount of
tendered Series 1995 B Bonds which were remarketed. Not
later than 4:00 p.m., New York City time, for Series 1995 B
Bonds accruing interest at Term Rates (or 12:45 p.m., New
York City time, in the case of Series 1995 B Bonds accruing
interest at Daily, Weekly or Commercial Paper Rates) on the
date of receipt of such notice the Trustee shall give
Electronic notice to the Series 1995 B Paying Agent, the
Agent and the Company, specifying the principal amount of
tendered Series 1995 B Bonds as to which the Series 1995 B
Remarketing Agent has not found a purchaser at that time.
At or before 3:00 p.m., New York City time, on the Series
1995 B Business Day prior to the Purchase Date to the extent
known to the Series 1995 B Remarketing Agent, but in any
event, no later than 1:00 p.m., New York City time, on the
Purchase Date (or two Series 1995 B Business Days prior to
the Purchase Date in the event tendered Series 1995 B Bonds
accrue interest at Term Rates), the Series 1995 B
Remarketing Agent shall give notice to the Series 1995 B
Paying Agent by telephone (promptly confirmed
Electronically) of the names, addresses and taxpayer
identification numbers of the purchasers, the denominations
of Series 1995 B Bonds to be delivered to each purchaser
and, if available, payment instructions for regularly
scheduled interest payments, or of any changes in any such
information previously communicated. As soon as practicable
after the remarketing of any Bank Bond, the Series 1995 B
Remarketing Agent shall give Electronic notice to the
Trustee, the Series 1995 B Paying Agent, the Agent and the
Company, specifying the principal amount of Bank Bonds which
were remarketed.
(ii) Sources of Payments; Demands under the
Standby Purchase Agreement. The Series 1995 B Remarketing
Agent shall cause to be paid to the Series 1995 B Paying
Agent on the Purchase Date of tendered Series 1995 B Bonds,
all amounts representing proceeds of the remarketing of such
Series 1995 B Bonds to purchasers other than the Issuer, the
Company or an affiliate thereof, such payments to be made in
the manner and at the time specified in Section 4.03(a)
above. If such amount will not be sufficient to pay the
Purchase Price on the Purchase Date, the Series 1995 B
Paying Agent shall give notice to the Trustee to demand the
purchase of Series 1995 B Bonds under the Standby Purchase
Agreement and the Trustee, by 1:00 p.m., New York City time,
on the Purchase Date, shall take the action specified by the
Standby Purchase Agreement so as to furnish immediately
available funds by 3:00 p.m., New York City time, on such
Purchase Date, in an amount sufficient, together with
remarketing proceeds available for such purchase, to enable
the Series 1995 B Paying Agent to pay the Purchase Price of
Series 1995 B Bonds to be purchased on such Purchase Date.
If no Standby Purchase Agreement is then in effect, the
Company shall deliver or cause to be delivered such amounts
and at such times so that there will be delivered to the
Series 1995 B Paying Agent (A) immediately available funds
in an amount equal to such deficiency prior to 3:00 p.m.,
New York City time, in the case of Series 1995 B Bonds
accruing interest at Commercial Paper Rates, Daily Rates or
Weekly Rates, and (B) clearinghouse funds in an amount equal
to such deficiency prior to 3:00 p.m., New York City time,
on the Purchase Date of tendered Series 1995 B Bonds
accruing interest at Term Rates. All moneys received by the
Series 1995 B Paying Agent as remarketing proceeds, received
under the Standby Purchase Agreement or received from the
Company, as the case may be, shall be deposited by the
Series 1995 B Paying Agent in the appropriate account of the
Series 1995 B Purchase Fund to be used solely for the
payment of the Purchase Price of tendered Series 1995 B
Bonds and shall not be commingled with other funds held by
the Series 1995 B Paying Agent and shall not be invested.
(iii) Payments by the Series 1995 B Paying Agent.
At or before 4:30 p.m., New York City time, on the Purchase
Date for tendered Series 1995 B Bonds and upon receipt by
the Series 1995 B Paying Agent of 100% of the aggregate
Purchase Price of the tendered Series 1995 B Bonds, the
Series 1995 B Paying Agent shall pay the Purchase Price of
such Series 1995 B Bonds to the tendering holders. Such
payments shall be made in immediately available funds (or by
wire transfer), unless the Series 1995 B Bonds to be
purchased accrue interest at Term Rates, in which event such
payments shall be made in clearinghouse funds. The Series
1995 B Paying Agent shall apply in order: (A) moneys paid to
it by the Series 1995 B Remarketing Agent as proceeds of the
remarketing of such Series 1995 B Bonds by the Series 1995 B
Remarketing Agent; (B) moneys received under the Standby
Purchase Agreement; and (C) other moneys made available by
the Company.
(iv) Registration and Delivery of Tendered or
Purchased Series 1995 B Bonds. On the date of purchase, the
Series 1995 B Paying Agent shall register and deliver (or
hold) or cancel all Series 1995 B Bonds purchased on any
Purchase Date as follows: (A) Series 1995 B Bonds purchased
or remarketed by the Series 1995 B Remarketing Agent shall
be registered and made available to the Series 1995 B
Remarketing Agent by 2:15 p.m., New York City time, in
accordance with the instructions of the Series 1995 B
Remarketing Agent; (B) Series 1995 B Bonds purchased with
moneys received under the Standby Purchase Agreement shall
be held as Bank Bonds in accordance with paragraph (v)
below; and (C) Series 1995 B Bonds purchased with amounts
provided by the Company shall be registered in the name of
the Company and shall be delivered to the Trustee to be held
in trust by the Trustee on behalf of the Company and shall
not be released from such trust unless the Trustee shall
have received written instructions from the Company.
Notwithstanding anything herein to the contrary, so long as
the Series 1995 B Bonds are held under the book entry only
system in accordance with Section 2.12 hereof, Series 1995 B
Bonds will not be delivered as set forth above; rather,
transfers of beneficial ownership of the Series 1995 B Bonds
to the person indicated above will be effected on the
registration books of the Securities Depository pursuant to
its rules and procedures.
(v) Bank Bonds. Series 1995 B Bonds purchased
with moneys provided under the Standby Purchase Agreement
shall be acquired for the benefit of the Series 1995 B Bank
and the Series 1995 B Bank shall be the beneficial owner of
such Series 1995 B Bonds. Such Series 1995 B Bonds shall
constitute "Bank Bonds", and shall be held by the Trustee as
agent for the Series 1995 B Bank unless and until (A) the
Trustee has received a certificate from the Agent
authorizing the release of such Bank Bonds and stating that
the commitment of each Series 1995 B Bank to purchase Series
1995 B Bonds has been increased to cover the principal of
and interest on the Bank Bonds to be released or (B) such
Bank Bonds are transferred to the Company or any other
person which shall acknowledge that the Standby Purchase
Agreement has not been reinstated. Pending transfer to a
purchaser, Bank Bonds are not transferable or deliverable to
any party except a Series 1995 B Bank or the Agent. The
Series 1995 B Remarketing Agent shall, unless instructed
otherwise by the Agent during the Term Period, continue to
use its best efforts to arrange for the sale of any Bank
Bonds, subject to full reinstatement of the Standby Purchase
Agreement, at a price equal to the principal amount thereof
plus accrued interest. The Series 1995 B Bank shall be
entitled to receive all payments of principal of and
interest on Bank Bonds.
Notwithstanding anything to the contrary in this
paragraph, if and for so long as the Series 1995 B Bonds are
to be held under the book entry only system in accordance
with Section 2.12 hereof, the registration requirements
under this paragraph (v) shall be deemed satisfied if Bank
Bonds are (1) registered in the name of the Securities
Depository or its nominee in accordance with Section 2.12
hereof; (2) credited on the books of the Securities
Depository to the account of the Trustee (or its nominee);
and (3) further credited on the books of the Trustee (or
such nominee) to the account of the Agent (or its designee).
(vi) Resale of Series 1995 B Bonds Purchased by
the Company. In the event that any Series 1995 B Bonds are
registered to the Company pursuant to paragraph (iv) above
or as a result of the purchase of Bank Bonds by the Company,
to the extent requested by the Company, the Series 1995 B
Remarketing Agent, subject to reinstatement of the Standby
Purchase Agreement, if in effect, with respect to such
Series 1995 B Bonds, shall offer for sale and use its best
efforts to sell such Series 1995 B Bonds at a price equal to
the principal amount thereof plus accrued interest.
(vii) Delivery of Tendered Series 1995 B Bonds;
Effect of Failure to Surrender Series 1995 B Bonds. All
Series 1995 B Bonds to be purchased on any date shall be
required to be delivered to the principal office of the
Series 1995 B Paying Agent at or before (A) 1:00 p.m., New
York City time, on the Purchase Date in the case of Series
1995 B Bonds accruing interest at Commercial Paper Rates or
Daily Rates; (B) 12:00 noon, New York City time, on the
Purchase Date in the case of Series 1995 B Bonds accruing
interest at Weekly Rates; or (C) 3:00 p.m., New York City
time, on the Purchase Date in the case of Series 1995 B
Bonds accruing interest at Term Rates. If the owner of any
Series 1995 B Bond (or portion thereof) in certificated form
that is subject to optional or mandatory purchase pursuant
to this Article IV fails to deliver such Series 1995 B Bond
to the Trustee for purchase on the Purchase Date, and if the
Series 1995 B Paying Agent is in receipt of the Purchase
Price therefor, such Series 1995 B Bond (or portion thereof)
shall nevertheless be deemed purchased on the Purchase Date
thereof and ownership of such Series 1995 B Bond (or portion
thereof) shall be transferred to the purchaser thereof. Any
owner who fails to deliver such Series 1995 B Bond for
purchase shall have no further rights thereunder except the
right to receive the Purchase Price thereof upon
presentation and surrender of said Series 1995 B Bond to the
Series 1995 B Paying Agent. The Series 1995 B Paying Agent
shall, as to any tendered Series 1995 B Bonds which have not
been delivered to it (i) promptly notify the Series 1995 B
Remarketing Agent of such nondelivery, and (ii) place or
cause to be placed a stop transfer against an appropriate
amount of Series 1995 B Bonds registered in the name of such
owner(s) on the registration books. Until the appropriate
tendered Series 1995 B Bonds are delivered to the Series
1995 B Paying Agent, the Series 1995 B Paying Agent shall
place or cause to be placed such stop(s) commencing with the
lowest serial number Series 1995 B Bond registered in the
name of such owner(s) until stop transfers have been placed
against an appropriate amount of Series 1995 B Bonds. Upon
such delivery, the Series 1995 B Paying Agent shall make or
cause the Series 1995 B Registrar to make any necessary
adjustments to the registration books. Notwithstanding
anything herein to the contrary, so long as the Series 1995
B Bonds are held under the book entry only system in
accordance with Section 2.12 hereof, Series 1995 B Bonds
will not be delivered as set forth above; rather, transfers
of beneficial ownership of the Series 1995 B Bonds to the
person indicated above will be effected on the registration
books of the Securities Depository pursuant to its rules and
procedures.
SECTION 4.04. Series 1995 B Purchase Fund. There is hereby
created and established with the Series 1995 B Paying Agent a
separate fund to be known as the "City of Rockport, Indiana
Pollution Control Revenue Refunding Bonds (Indiana Michigan Power
Company Project) Series 1995 B Purchase Fund". The Series 1995 B
Paying Agent shall further establish separate accounts within the
Series 1995 B Purchase Fund to be known as the "Standby Purchase
Agreement Purchase Account", the "Remarketing Account" and the
"Company Purchase Account".
The Series 1995 B Paying Agent shall deposit or cause to be
deposited into the Remarketing Account, when and as received, all
moneys delivered to the Series 1995 B Paying Agent as and for the
Purchase Price of remarketed Series 1995 B Bonds by or on behalf
of the Series 1995 B Remarketing Agent. The Series 1995 B Paying
Agent shall disburse moneys from the Remarketing Account to pay
the Purchase Price of Series 1995 B Bonds in accordance with
Section 4.03 hereof.
The Trustee shall deposit or cause to be deposited into the
Standby Purchase Agreement Purchase Account, when and as
received, all moneys received under the Standby Purchase
Agreement. The Series 1995 B Paying Agent shall disburse moneys
from the Standby Purchase Agreement Purchase Account to pay the
Purchase Price of Series 1995 B Bonds in accordance with Section
4.03 hereof; provided that such moneys shall not be applied to
purchase Bank Bonds or Series 1995 B Bonds held of record by the
Issuer, the Company, any affiliate of the Company or any broker-
dealer holding Series 1995 B Bonds pursuant to an arrangement
with the Company or Issuer.
The Trustee or Series 1995 B Paying Agent, as the case may
be, shall deposit or cause to be deposited into the Company
Purchase Account, when and as received, all moneys delivered to
the Trustee or the Series 1995 B Paying Agent, as the case may
be, by or for the account of the Company pursuant to Section 4.15
of the Agreement. The Series 1995 B Paying Agent shall disburse
moneys from the Company Purchase Account to pay the Purchase
Price of Series 1995 B Bonds in accordance with Section 4.03
hereof or to reimburse the Series 1995 B Bank for moneys provided
under the Standby Purchase Agreement.
Moneys in the Series 1995 B Purchase Fund shall be used
solely to pay the Purchase Price of Series 1995 B Bonds (or to
reimburse the Series 1995 B Bank for moneys provided under the
Standby Purchase Agreement) and may not be used for any other
purposes. It is the duty of the Series 1995 B Paying Agent to
hold the moneys in the Series 1995 B Purchase Fund, without
liability for interest thereon, for the benefit of the owners of
Series 1995 B Bonds which have been properly tendered for
purchase or deemed tendered on the Purchase Date, and if
sufficient funds to pay the Purchase Price for the tendered
Series 1995 B Bonds shall be held by the Series 1995 B Paying
Agent in the Series 1995 B Purchase Fund for the benefit of the
owners thereof, each such owner shall thereafter be restricted
exclusively to the Series 1995 B Purchase Fund for any claim of
whatever nature on such owner's part under the Indenture or on or
with respect to such tendered Series 1995 B Bond. Funds held in
the Series 1995 B Purchase Fund for the benefit of owners of
untendered Series 1995 B Bonds shall be held in trust and either
not invested or invested in overnight Government Obligations.
SECTION 4.05. Standby Purchase Agreement; Alternate
Liquidity Facility.
(a) If at any time there shall have been delivered to
the Trustee, in substitution for the Standby Purchase Agreement
then in effect, an Alternate Liquidity Facility which qualifies
and is delivered under Section 4.14 of the Agreement, then the
Trustee shall accept such Alternate Liquidity Facility and,
subject to the provisions of Section 4.14 of the Agreement,
promptly surrender the Standby Purchase Agreement then in effect
to the Agent in accordance with its terms for cancellation or
otherwise evidence the termination thereof in a manner reasonably
satisfactory to the Agent. If all or any part of the Series 1995
B Bonds cease to be outstanding, the Trustee shall take such
action as may be permitted under the Standby Purchase Agreement
to reduce the amount available thereunder to the principal amount
of the Series 1995 B Bonds plus (i) interest for 35 days if the
Series 1995 B Bonds accrue interest at a Daily or Weekly Rate;
275 days (or such fewer days as may be determined by the Company)
if the Series 1995 B Bonds accrue interest at a Commercial Paper
Rate; or 185 days if the Series 1995 B Bonds accrue interest at a
Term Rate and (ii) if the Series 1995 B Bonds accrue interest at
the Term Rate, the premium, if any, which would be included in
the Purchase Price of the Series 1995 B Bonds pursuant to Section
4.02(c) hereof if the Standby Purchase Agreement is not extended
beyond its Expiration Date.
(b) While the book entry system is in effect for the
Series 1995 B Bonds, the Trustee shall give 20 days prior written
notice of the Expiration Date of the Standby Purchase Agreement
to the Securities Depository.
ARTICLE V
FUNDS AND ACCOUNTS
SECTION 5.01. Series 1995 B Bond Fund.
(a) There is hereby created and established with the
Trustee a fund to be designated "City of Rockport, Indiana
Pollution Control Revenue Refunding Bonds (Indiana Michigan Power
Company Project) Series 1995 B Bond Fund" ("Series 1995 B Bond
Fund"). The Series 1995 B Bond Fund shall be a segregated trust
fund held for the benefit of the owners of the Series 1995 B
Bonds.
(b) There shall be deposited into the Series 1995 B
Bond Fund (i) all accrued interest, if any, received upon the
initial issuance of the Series 1995 B Bonds, and (ii) all other
moneys received by the Trustee under and pursuant to any of the
provisions of the Indenture or the Agreement which are required
or which are accompanied by directions from the Company that such
moneys are to be paid into the Series 1995 B Bond Fund.
SECTION 5.02. Adjustable Series 1985 A Refunding Fund.
There is hereby created and established with the Trustee a fund
to be designated "City of Rockport, Indiana Adjustable Rate
Tender Pollution Control Revenue Refunding Bonds (Indiana &
Michigan Electric Company Project) Series 1985 A Refunding Fund
("Adjustable Series 1985 A Refunding Fund"). On August 1, 1995,
the Trustee shall apply all moneys on deposit in the Adjustable
Series 1985 A Refunding Fund, together with all earnings thereon,
up to, but not exceeding, the principal and interest due on the
Adjustable Series 1985 A Bonds and any fees owed to the
Adjustable Bank in connection with the Adjustable Letter of
Credit to reimburse the Adjustable Bank for draws on the
Adjustable Letter of Credit, the proceeds of which were used to
redeem the Adjustable Series 1985 A Bonds. Any amounts remaining
in the Adjustable Series 1985 A Refunding Fund after the
Adjustable Series 1985 A Bonds have been redeemed and all amounts
owed to the Adjustable Bank under the Adjustable Reimbursement
Agreement have been paid shall be transferred to the Series 1995
B Bond Fund.
ARTICLE VI
SERIES 1995 B PAYING AGENT;
SERIES 1995 B REMARKETING AGENT
SECTION 6.01. Series 1995 B Paying Agent. The initial
Series 1995 B Paying Agent shall be the Trustee. The Series 1995
B Paying Agent, if other than the Trustee, shall designate to the
Issuer, the Trustee, the Company, the Series 1995 B Remarketing
Agent and the Agent its principal office and signify its
acceptance of the duties and obligations imposed upon it
hereunder by a written instrument of acceptance delivered to the
Issuer and the Trustee under which such Series 1995 B Paying
Agent will agree, particularly:
(a) to hold all sums held by it for the payment of the
principal and premium of or interest on Series 1995 B Bonds in
trust for the benefit of the owners until such sums shall be paid
to such owners or otherwise disposed of as herein provided;
(b) to hold all monies delivered to it hereunder for
the purchase of Series 1995 B Bonds in trust in the Series 1995 B
Purchase Fund for the benefit of the person or entity which shall
have so delivered such moneys until the Series 1995 B Bonds
purchased with such moneys shall have been delivered to or for
the account of such person or entity;
(c) to hold all Series 1995 B Bonds delivered to it
hereunder, as agent and bailee of, and in escrow for the benefit
of, the respective owners thereof until moneys representing the
Purchase Price of such Series 1995 B Bonds shall have been
delivered to or for the account of or to the order of such
owners;
(d) to keep such books and records as shall be
consistent with prudent industry practice, to make such books and
records available for inspection by the Issuer, the Trustee, the
Company and the Agent at all reasonable times; and
(e) upon the written request of the Trustee, to
forthwith deliver to the Trustee all sums so held in trust by the
Series 1995 B Paying Agent.
SECTION 6.02. Qualifications of Series 1995 B Paying Agent;
Resignation; Removal. The Series 1995 B Paying Agent shall be a
bank or trust company duly organized under the laws of the United
States of America or any state or territory thereof, having a
combined capital, surplus and retained earnings of at least
$50,000,000 and authorized by law to perform all the duties
imposed upon it by the Indenture. The Series 1995 B Paying Agent
may at any time resign and be discharged of the duties and
obligations created by this Indenture by giving at least sixty
(60) days' notice to the Issuer, the Company, the Agent, the
Series 1995 B Remarketing Agent and the Trustee. The Series 1995
B Paying Agent may be removed at any time, by an instrument
signed by the Company, filed with the Issuer, the Series 1995 B
Paying Agent, the Series 1995 B Bank, the Series 1995 B
Remarketing Agent and the Trustee.
In the event of the resignation or removal of the Series
1995 B Paying Agent, the Series 1995 B Paying Agent shall pay
over, assign and deliver any moneys held by it in such capacity
to its successor or, if there be no successor, to the Trustee.
In the event that the Issuer, at the request of the Company,
shall fail to appoint a Series 1995 B Paying Agent hereunder, or
in the event that the Series 1995 B Paying Agent shall resign or
be removed, or be discharged, or if the property or affairs of
the Series 1995 B Paying Agent shall be taken under the control
of any state or federal court or administrative body because of
bankruptcy or insolvency, or for any other reason, the Trustee
shall be the Series 1995 B Paying Agent for all purposes of the
Indenture until the appointment of a successor Series 1995 B
Paying Agent.
SECTION 6.03. Series 1995 B Remarketing Agent. The initial
Series 1995 B Remarketing Agent shall be Goldman, Sachs & Co.
The Series 1995 B Remarketing Agent shall signify its acceptance
of the duties and obligations imposed upon it under the Indenture
by a written instrument of acceptance delivered to the Issuer,
the Trustee and the Company.
In addition to the other obligations imposed on the Series
1995 B Remarketing Agent hereunder, the Series 1995 B Remarketing
Agent shall keep such books and records as shall be consistent
with prudent industry practices and make such books and records
available for inspection by the Issuer, the Trustee, the Company
and the Agent at all reasonable times.
SECTION 6.04. Qualifications of Series 1995 B Remarketing
Agent. The Series 1995 B Remarketing Agent may at any time
resign and be discharged of the duties and obligations created
hereby by giving at least thirty (30) days' notice to the Issuer,
the Agent, the Company, the Series 1995 B Paying Agent and the
Trustee. The Series 1995 B Remarketing Agent may be removed, by
an instrument signed by the Company with the written consent of
the Agent, filed with the Issuer, the Series 1995 B Remarketing
Agent, the Agent, the Series 1995 B Paying Agent and the Trustee
upon thirty (30) days' prior written notice to the Series 1995 B
Remarketing Agent. Any successor Series 1995 B Remarketing Agent
shall be a member of the National Association of Securities
Dealers, Inc., having a total capitalization of at least
$100,000,000 and authorized by law to perform all the duties
imposed upon it by this Sixth Supplemental Indenture.
In the event of the resignation or removal of the Series
1995 B Remarketing Agent, the Series 1995 B Remarketing Agent
shall pay over, assign and deliver any moneys and Series 1995 B
Bonds held by it in such capacity to its successor or, if there
be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Series
1995 B Remarketing Agent hereunder, or in the event that the
Series 1995 B Remarketing Agent shall resign or be removed, or be
dissolved, or if the property or affairs of the Series 1995 B
Remarketing Agent shall be taken under the control of any state
or federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, and the Company shall not
have appointed a successor Series 1995 B Remarketing Agent, the
Series 1995 B Paying Agent, notwithstanding the provisions of the
first paragraph of this Section 6.04, shall be the Series 1995 B
Remarketing Agent for all purposes of the Indenture until the
appointment by the Company of a successor Series 1995 B
Remarketing Agent.
ARTICLE VII
COVENANTS AND SECURITY
SECTION 7.01. Issuer; Compliance with Conditions. The
Issuer covenants that it is duly authorized under the laws of the
State of Indiana, including particularly and without limitation
the Act, to (i) issue the Series 1995 B Bonds authorized hereby
and to execute and deliver this Sixth Supplemental Indenture, to
assign and pledge the Agreement and the revenues and receipts
payable under the Agreement and to grant a security interest
therein and to pledge the revenues and receipts in the manner and
to the extent contemplated herein and in the Indenture; (ii) that
all of the requirements and conditions for the execution and
delivery of this Sixth Supplemental Indenture have been satisfied
and complied with; (iii) that all other action on its part
necessary for the execution and delivery of this Sixth
Supplemental Indenture has been duly and effectively taken; and
(iv) that the Series 1995 B Bonds in the hands of the owners
thereof are and will be valid and enforceable obligations of the
Issuer according to the terms thereof and hereof.
SECTION 7.02. Security for Series 1995 B Bonds;
Confirmation of Indenture. The Series 1995 B Bonds shall be
equally and ratably secured (except insofar as any guaranty,
letter of credit, insurance policy, first mortgage bond or other
collateral or instrument of credit enhancement provided by a
person other than the Issuer may afford additional security for
the Bonds of any particular series) under the Indenture with all
outstanding Bonds and any other series of bonds which may be
issued pursuant to Section 2.10 or 2.11 of the Indenture, without
preference, priority or distinction of any bonds over any other
bonds. As supplemented and amended, the Indenture is ratified
and confirmed (except as set forth herein), and the Indenture,
including each supplemental indenture, shall be read, taken and
construed as one and the same instrument. All covenants,
agreements and provisions of, and all security (except as set
forth herein), provided under, the Indenture shall apply with
full force and effect to the Series 1995 B Bonds and to the
owners thereof (except insofar as any guaranty, letter of credit,
insurance policy, first mortgage bond or other collateral or
instrument of credit enhancement provided by a person other than
the Issuer may afford additional security for the Bonds of any
particular series).
ARTICLE VIII
AMENDMENTS OF INDENTURE
SECTION 8.01. Amendment to Section 1.01. Section 1.01 is
amended to add at the end thereof the following:
"Agent" means the Series 1995 B Bank appointed as
"Agent" under the Standby Purchase Agreement, initially The
Bank of New York, except that if an Alternate Liquidity
Facility is in effect, such term shall mean the entity
appointed as "Agent" under the Alternate Liquidity Facility.
If at any time there shall be only a single Series 1995 B
Bank or obligor under the Standby Purchase Agreement or
Alternate Liquidity Facility, as the case may be, such
Series 1995 B Bank or obligor shall be the Agent.
"Alternate Liquidity Facility" means a standby bond
purchase agreement or other liquidity device issued in
accordance with Section 4.05 of the Sixth Supplemental
Indenture.
"Bank Bonds" has the meaning set forth in Section
4.03(b)(v) of the Sixth Supplemental Indenture.
"Bank Rate" means, with respect to each Bank Bond, that
variable rate of interest (but not in excess of the Series
1995 B Maximum Rate) determined daily necessary to produce
an amount equal to interest at the prime rate (or with
respect to any overdue amount, the prime rate plus two
percent), calculated on (i) the principal amount of such
Bank Bond plus (ii) to the extent permitted by law, the
amount of accrued interest paid by a Series 1995 B Bank to
purchase such Bank Bond, until such principal and accrued
interest have been paid to such Series 1995 B Bank. The
"prime rate" means, on any date, the rate specified as the
"Prime Rate" in the Wall Street Journal under the table
entitled "Money Rates" on such date, or if such rate is not
published on such date, the rate so specified on the
immediately preceding date that such rate was published.
"Bond Insurer" shall mean AMBAC Indemnity Corporation,
a Wisconsin-domiciled stock insurance company.
"Commercial Paper Rate" means the interest rate for
each Series 1995 B Bond as determined with respect to such
Series 1995 B Bond as provided in Section 2.05 of the Sixth
Supplemental Indenture.
"Commercial Paper Rate Period" means with respect to
any Series 1995 B Bond, each period determined for such
Series 1995 B Bond as provided in Section 2.05 of the Sixth
Supplemental Indenture.
"Daily Rate" means the interest rate to be determined
for the Series 1995 B Bonds on each Series 1995 B Business
Day pursuant to Section 2.05 of the Sixth Supplemental
Indenture.
"Daily Rate Conversion Date" means the day on which the
Series 1995 B Bonds accrue interest at a Daily Rate pursuant
to Section 2.05 of the Sixth Supplemental Indenture which is
immediately preceded by a day on which the Series 1995 B
Bonds did not accrue interest at a Daily Rate.
"Daily Rate Period" means each period during which the
Series 1995 B Bonds accrue interest at a particular Daily
Rate.
"Electronic" notice means notice transmitted through a
time-sharing terminal or facsimile machine, if operative as
between any two parties, or if not operative, in writing or
by telephone (promptly confirmed in writing).
"Expiration Date" means the stated expiration date of
the Standby Purchase Agreement, as such date may be extended
from time to time by the Series 1995 B Bank, or the date on
which the Company terminates the Standby Purchase Agreement
in accordance with Section 4.14 of the Agreement, including
the assignment by a Series 1995 B Bank of its commitment
under the Standby Purchase Agreement to a bank or other
institution that is not at the time a Series 1995 B Bank.
"Favorable Opinion of Series 1995 B Bond Counsel" means
an opinion of Series 1995 B Bond Counsel to the effect that
such action is permitted under the Act and this Indenture
and will not adversely affect the exclusion from gross
income of interest on the Series 1995 B Bonds for federal
income tax purposes (subject to the inclusion of customary
exceptions).
"Fitch" means Fitch Investors Service, L.P.
"hereof","herein", "hereto", "hereby" and "hereunder"
(except in the form of Series 1995 B Bond), when used in the
Sixth Supplemental Indenture, refer to the Sixth
Supplemental Indenture, not the entire Indenture.
"Interest Rate" means a Commercial Paper, Daily,
Weekly, Bank or Term Rate.
"Maturity Date" means June 1, 2025.
"Purchase Date" means, with respect to each Series 1995
B Bond, each day that such Series 1995 B Bond is subject to
purchase pursuant to Section 4.01 or 4.02 of the Sixth
Supplemental Indenture.
"Purchase Price" or "purchase price" for any Series
1995 B Bond shall equal the principal amount of such Series
1995 B Bond plus accrued interest, if any, plus in the case
of (i) a Series 1995 B Bond converted from a Term Rate
Period on a date when such Series 1995 B Bond is also
subject to optional redemption at a premium or (ii) a Series
1995 B Bond accruing interest at a Term Rate subject to
mandatory tender pursuant to Section 4.02(c) of the Sixth
Supplemental Indenture on a date when such Series 1995 B
Bond is also subject to optional redemption at a premium, an
amount equal to the premium that would be payable on such
Series 1995 B Bond if optionally redeemed on such date.
"Rate Period" means the period during which a
particular rate of interest determined for the Series 1995 B
Bonds is to remain in effect pursuant to Article II of the
Sixth Supplemental Indenture.
"Securities Depository" means The Depository Trust
Company, a corporation organized and existing under the laws
of the State of New York, and any other securities
depository for the Series 1995 B Bonds appointed pursuant to
Section 2.12 of the Sixth Supplemental Indenture, and their
successors.
"Series 1995 B Bank" means any bank or banks designated
from time to time as a "Bank" (including the Agent) under
the Standby Purchase Agreement, except that if an Alternate
Liquidity Facility is in effect, such term means any entity
or entities obligated to make payments under the Alternate
Liquidity Facility.
"Series 1995 B Bond Counsel" means any firm of
nationally recognized municipal bond counsel selected by the
Company and acceptable to the Issuer and the Trustee.
"Series 1995 B Bond Fund" means the Bond Fund created
in Section 5.01 of the Sixth Supplemental Indenture.
"Series 1995 B Business Day" means any day of the week
other than Saturday, Sunday or other day (a) on which
commercial banks located in the cities in which the
principal offices of the Agent, the Trustee, the Series 1995
B Remarketing Agent or the Series 1995 B Paying Agent are
located are required or authorized by law to close or (b) on
which The New York Stock Exchange, Inc. is closed.
"Series 1995 B Conversion Date" means the day on which
a particular type of interest rate becomes effective for the
Series 1995 B Bonds which is not immediately preceded by a
day on which the Series 1995 B Bonds have accrued interest
at the same type of rate (and, when used with respect to any
Term Rate Period, a date which is not preceded by a Term
Rate Period of the same duration).
"Series 1995 B Insurance Policy" shall mean the
municipal bond insurance policy issued by the Bond Insurer
that guarantees payment of principal of and interest on the
Series 1995 B Bonds.
"Series 1995 B Interest Payment Date" means (a) when
used with respect to any particular Series 1995 B Bond
accruing interest at a Commercial Paper Rate, the day after
the last day of each Commercial Paper Rate Period applicable
thereto; (b) when used with respect to Series 1995 B Bonds
accruing interest at Daily or Weekly Rates, the first Series
1995 B Business Day of each calendar month following a month
in which interest at such rate has accrued; (c) when used
with respect to Series 1995 B Bonds accruing interest at a
Term Rate, the first day of the sixth calendar month
following the month in which the Term Rate Conversion Date
occurs and the first day of each sixth month thereafter to
which interest at such rate has accrued, except that the
last Series 1995 B Interest Payment Date for any Term Rate
Period shall be the commencement date of the following Term
Rate Period or the Series 1995 B Conversion Date on which a
different Rate Period shall become effective; (d) when used
with respect to any Bank Bond, (i) the first day of each
month succeeding the date on which such Bank Bond was
purchased by the Series 1995 B Bank; (ii) each day on which
any principal of such Bank Bond is paid at maturity, or upon
acceleration or redemption; and (iii) when such Bank Bond is
remarketed or sold to the Company, the day on which the
Series 1995 B Bond is delivered to the purchaser thereof;
and (e) the Maturity Date.
"Series 1995 B Interest Period" or "Series 1995 B
Interest Rate Period" means the period from and including
any Series 1995 B Interest Payment Date to and including the
day immediately preceding the next following Series 1995 B
Interest Payment Date.
"Series 1995 B Maximum Rate" means, on any day, the
lesser of (i) the maximum interest rate permitted by law or
(ii) 18% per annum, except that while a Standby Purchase
Agreement is in effect, the Series 1995 B Maximum Rate shall
not exceed the rate specified in the Standby Purchase
Agreement, initially 12%, which is used to determine the
available interest commitment.
"Series 1995 B Purchase Fund" means the Purchase Fund
created in Section 4.04 of the Sixth Supplemental Indenture.
"Series 1995 B Regular Record Date" means the close of
business on either (a) the day (whether or not a Series 1995
B Business Day) immediately preceding a Series 1995 B
Interest Payment Date in the case of Series 1995 B Bonds
accruing interest at Commercial Paper, Daily or Weekly Rates
or the Bank Rate or (b) the fifteenth day (whether or not a
Series 1995 B Business Day) of the calendar month
immediately preceding the Series 1995 B Interest Payment
Date in the case of Series 1995 B Bonds accruing interest at
Term Rates.
"Series 1995 B Remarketing Agent" means Goldman, Sachs
& Co. and its successors as provided in Section 6.03 of the
Sixth Supplemental Indenture.
"Standby Purchase Agreement" means the Standby Bond
Purchase Agreement dated as of June 1, 1995, among the
Series 1995 B Bank named therein, the Company and the Agent,
except that upon the issuance of an Alternate Liquidity
Facility in accordance with Section 4.05 of the Sixth
Supplemental Indenture, such term shall mean such Alternate
Liquidity Facility.
"Term Rate" means the interest rate to be determined
for the Series 1995 B Bonds for a term of one or more years
pursuant to Section 2.05of the Sixth Supplemental Indenture.
"Term Rate Conversion Date" means each day on which the
Series 1995 B Bonds accrue interest at a Term Rate pursuant
to Section 2.05 of the Sixth Supplemental Indenture which is
immediately preceded by a day on which the Series 1995 B
Bonds did not accrue interest at a Term Rate or accrued
interest at a Term Rate for a Term Rate Period of a
different duration.
"Term Rate Period" means each period during which the
Series 1995 B Bonds accrue interest at a particular Term
Rate.
"Weekly Rate" means the interest rate to be determined
for the Series 1995 B Bonds on a weekly basis pursuant to
Section 2.05 of the Sixth Supplemental Indenture.
"Weekly Rate Conversion Date" means each day on which
the Series 1995 B Bonds accrue interest a Weekly Rate
pursuant to Section 2.05 of the Sixth Supplemental Indenture
which is immediately preceded by a day on which the Series
1995 B Bonds did not accrue interest at a Weekly Rate.
"Weekly Rate Period" means the period during which the
Series 1995 B Bonds accrue interest at a particular Weekly
Rate.
SECTION 8.02. Amendment to Section 2.11. The last
paragraph of Section 2.11 of the 1984 Indenture is amended to
read as follows:
"The proceeds of such Refunding Bonds shall be
deposited by the Trustee in the Bond Fund and held by the
Trustee in the Bond Fund pursuant to the provisions of
Section 7.01 for the payment of, or deposited in another
fund established with the Trustee for the purpose of
reimbursing a bank for draws on a letter of credit, or other
provider of credit support or liquidity for payments made in
respect of such credit support or liquidity, the proceeds of
which were used for the payment of, the principal of, and
premium, if any, and interest on, the Bonds to be refunded
at the earliest date on which such Bonds shall be subject to
redemption at the option of the Issuer or such later date,
including the maturity date, as the Issuer, at the direction
of the Company, shall designate."
SECTION 8.03. Amendment to Section 7.01. The following
Section 7.01(c) is added at the end of Section 7.01 of the
Indenture:
"(c) In addition to the other requirements of Section
7.01 of the Indenture, (i) moneys and non-callable
Government Obligations are the only deposits which may be
made with the Trustee in order that the Series 1995 B Bonds
shall be no longer secured by or entitled to the benefits of
the Indenture and (ii) Series 1995 B Bonds shall continue to
be secured by and entitled to the provisions of the
Indenture and shall not be treated as having been paid until
such Series 1995 B Bond matures or is called for redemption
prior to the next day upon which such Series 1995 B Bond is
subject to purchase pursuant to Section 4.01 or 4.02 of the
Sixth Supplemental Indenture and the Company waives, to the
satisfaction of the Trustee, its right to convert the Rate
Period of the Series 1995 B Bonds."
SECTION 8.04. Amendment to Section 8.01. Section 8.01 of
the Indenture is amended by replacing the "." at the end of
Section 8.01(j) with "; or" and adding at the end thereof the
following:
"(k) failure to pay an amount due in respect of the
purchase price of Series 1995 B Bonds required to be purchased
pursuant to Section 4.01 or 4.02 of the Sixth Supplemental
Indenture for a period of one (1) Business Days after such
payment has become due and payable."
SECTION 8.05. Amendment to Section 8.02. Section 8.02 of
the Indenture is amended to add the following at the end thereof:
"To the extent that the Standby Purchase Agreement was in
effect immediately prior to the Event of Default, no
declaration under this Section 8.02 shall be annulled until
the commitments of each Series 1995 B Bank to provide moneys
in accordance with the Standby Purchase Agreement to
purchase Series 1995 B Bonds pursuant to Section 4.01 or
4.02 of the Sixth Supplemental Indenture shall have been
fully reinstated."
SECTION 8.06. Amendment to Section 8.11. Section 8.11 of
the Indenture is amended to add the following at the end thereof:
"To the extent that the Standby Purchase Agreement was in
effect immediately prior to the Event of Default, the
Trustee shall not waive any Event of Default hereunder and
its consequences or rescind any declaration of maturity of
principal until the commitments of each Series 1995 B Bank
to provide moneys in accordance with the Standby Purchase
Agreement to purchase Series 1995 B Bonds pursuant to
Section 4.01 or 4.02 of the Sixth Supplemental Indenture
shall have been fully reinstated."
SECTION 8.07. Amendment to Section 10.01. Section 10.01 of
the Indenture is amended to add the following Section 10.01(j)
after Section 10.01(i):
"(j) to modify or supplement the terms of, or provide
for an Alternate Liquidity Facility or other credit support
for, the Series 1995 B Bonds effective on the day of a
mandatory tender of all outstanding Series 1995 B Bonds
pursuant to Section 4.02 of the Sixth Supplemental
Indenture."
SECTION 8.08. Amendment to Section 10.02. Section 10.02 of
the Indenture is amended by adding the following paragraph at the
end thereof:
"Consistent with the bondholder consent requirements
set forth in this Section 10.02, on any date of mandatory
tender of the Series 1995 B Bonds pursuant to Section 4.02
of the Sixth Supplemental Indenture, while the Series 1995 B
Bonds are registered in book entry only form, if the Series
1995 B Remarketing Agent (prior to execution of sales to
purchasers on that date) is the beneficial holder of 100% of
the outstanding Series 1995 B Bonds which have been tendered
or deemed tendered on such date, the Series 1995 B
Remarketing Agent, as beneficial holder, shall have the
right to give consents required of the holders of
outstanding Series 1995 B Bonds under this Section 10.02,
notwithstanding registration of the Series 1995 B Bonds in
the name of the Securities Depository. Prior to accepting
such consent from a Series 1995 B Remarketing Agent, the
Trustee shall receive a certificate of the Series 1995 B
Remarketing Agent to the effect that (i) the Series 1995 B
Remarketing Agent is the sole beneficial owner of the
outstanding Series 1995 B Bonds as of the date of such
consent and (ii) the Series 1995 B Remarketing Agent will
confirm sales of such Series 1995 B Bonds only to the
purchasers of beneficial interests in such Series 1995 B
Bonds who have been notified by the Series 1995 B
Remarketing Agent of the supplement. Such consent by the
Series 1995 B Remarketing Agent as beneficial holder shall
be binding on the Series 1995 B Remarketing Agent, as
beneficial holder of such Series 1995 B Bonds giving such
consent, on the Securities Depository, and on an subsequent
holder of such Series 1995 B Bonds."
SECTION 8.09. Amendment to Section 10.04. Section 10.04 of
the Indenture is amended to read as follows:
"Anything herein to the contrary notwithstanding, so long as
any Series 1985 A Bonds, Adjustable Series 1985 A Bonds or
Series 1995 B Bonds are outstanding, a supplemental
indenture under this Article X which in the judgment of the
Bank, the Adjustable Bank or the Agent adversely affects the
rights of the Bank, the Adjustable Bank, the Agent or the
Series 1995 B Bank shall not become effective unless and
until the Bank, the Adjustable Bank or the Agent, as the
case may be, shall have consented to the execution and
delivery of such supplemental indenture; provided that the
consent of the Bank, the Adjustable Bank or the Agent shall
not be required with respect to any supplemental indenture
described in Section 10.01(f) of the Sixth Supplemental
Indenture. In this regard, the Trustee shall cause notice
of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or
registered mail to the Bank, the Adjustable Bank and the
Agent at least 15 days prior to the publication of notice of
the proposed execution of such supplemental indenture or, if
publication of notice is not required, at least 15 days
prior to execution of such supplemental indenture; provided
that no such notice need be given to the Bank, the
Adjustable Bank and the Agent with respect to any
supplemental indenture described in Section 10.01(f) of the
Sixth Supplemental Indenture. The Bank and the Adjustable
Bank shall be deemed to have consented to the execution and
delivery of any such supplemental indenture if the Trustee
does not receive a letter of protest or objection thereto
signed by or on behalf of the Bank or the Adjustable Bank on
or before 4:30 p.m., Fort Wayne time, on the fifteenth day
after the receipt of said notice and a copy of the proposed
supplemental indenture by the Bank and the Adjustable Bank."
SECTION 8.10. Amendment to Section 11.02. Section 11.02 of
the Indenture is amended by adding the following paragraph at the
end thereof:
"Consistent with the bondholder consent requirements
set forth in this Section 11.02, on any date of mandatory
tender of the Series 1995 B Bonds pursuant to Section 4.02
of the Sixth Supplemental Indenture, while the Series 1995 B
Bonds are registered in book entry only form, if the Series
1995 B Remarketing Agent (prior to execution of sales to
purchasers on that date) is the beneficial holder of 100% of
the outstanding Series 1995 B Bonds which have been tendered
or deemed tendered on such date, the Series 1995 B
Remarketing Agent, as beneficial holder, shall have the
right to give consents required of the holders of
outstanding Series 1995 B Bonds under this Section 11.02,
notwithstanding registration of the Series 1995 B Bonds in
the name of the Securities Depository. Prior to accepting
such consent from a Series 1995 B Remarketing Agent, the
Trustee shall receive a certificate of the Series 1995 B
Remarketing Agent to the effect that (i) the Series 1995 B
Remarketing Agent is the sole beneficial owner of the
outstanding Series 1995 B Bonds as of the date of such
consent and (ii) the Series 1995 B Remarketing Agent will
confirm sales of such Series 1995 B Bonds only to the
purchasers of beneficial interests in such Series 1995 B
Bonds who have been notified by the Series 1995 B
Remarketing Agent of the amendment. Such consent by the
Series 1995 B Remarketing Agent as beneficial holder shall
be binding on the Series 1995 B Remarketing Agent, as
beneficial holder of such Series 1995 B Bonds giving such
consent, on the Securities Depository, and on an subsequent
holder of such Series 1995 B Bonds."
SECTION 8.11. Amendment to Section 11.03. Section 11.03 of
the Indenture is amended to read as follows:
"Anything herein to the contrary notwithstanding, so long as
any Series 1985 A Bonds, Adjustable Series 1985 A Bonds or
the Series 1995 B Bonds are outstanding, any amendment,
change or modification of the Agreement which in the
judgment of the Bank, the Adjustable Bank or the Agent
adversely affects the rights of the Bank, the Adjustable
Bank or the Series 1995 B Bank, as the case may be, shall
not become effective unless and until the Bank, the
Adjustable Bank or the Agent, as the case may be, shall have
consented to the execution and delivery of such amendment,
change or modification; provided that the consent of the
Bank, the Adjustable Bank or the Agent shall not be required
with respect to any amendment, change or modification
described in Section 11.01(v) of the Sixth Supplemental
Indenture. In this regard, the Trustee shall cause notice
of the proposed execution and delivery of any such
amendment, change or modification together with a copy of
the proposed amendment, change or modification to be mailed
by certified or registered mail to the Bank, the Adjustable
Bank and the Agent at least 15 days prior to the publication
of notice of the proposed execution of such amendment,
change or modification or, if publication of notice is not
required, at least 15 days prior to execution of such
amendment, change or modification; provided that no such
notice need be given to the Bank, the Adjustable Bank or the
Agent with respect to any amendment, change or modification
described in Section 11.01(v) of the Sixth Supplemental
Indenture. The Bank and the Adjustable Bank shall be deemed
to have consented to the execution and delivery of any such
amendment, change or modification if the Trustee does not
receive a letter of protest or objection thereto signed by
or on behalf of the Bank or the Adjustable Bank on or before
4:30 p.m., Fort Wayne time, on the fifteenth day after the
receipt of said notice and a copy of the proposed amendment,
change or modification by the Bank and the Adjustable Bank."
SECTION 8.12. Amendment to Section 12.01. The last
paragraph of Section 12.01 of the 1984 Indenture is amended by
adding the following sentence at the end of the paragraph:
"The Trustee may establish a record date with respect
to the Series 1995 B Bonds for purposes of this Section
12.01, with no provision for revocation of consents,
requests, directions, approvals, objections or other
instruments by subsequent owners after the record
date."
ARTICLE IX
SPECIAL INSURANCE REQUIREMENTS
SECTION 9.01. Notice of Certain Redemptions. The Trustee
shall notify the Bond Insurer in the manner set forth in Article
III of the Indenture of any redemption of Series 1995 B Bonds
pursuant to such provisions.
SECTION 9.02. Notice of Default; Notices of Claims Under
Series 1995 B Insurance Policy.
(a) The Trustee shall give the Bond Insurer Immediate
Notice of any Event of Default with respect to the Series 1995 B
Bonds set forth in Sections 8.01(a) and (b) of the Indenture.
The Trustee shall also give the Bond Insurer Immediate Notice if
the Trustee has been notified by the Company by the Series 1995 B
Business Day prior to any payment date set forth in Sections
8.01(a) or (b) of the Indenture that the Company does not intend
to make such payment. The Trustee shall give the Bond Insurer
notice of any other Event of Default within 30 days after any
Responsible Officer has knowledge of an Event of Default under
Sections 8.01(c), (d) or (e) of the Indenture and within 5 days
after any Responsible Officer has knowledge of an Event of
Default under Section 8.01(k) of the Indenture.
(b) The Trustee shall, at the time it provides notice
to the Bond Insurer under either of the first two sentences of
Section 9.02(a) hereof, notify registered owners of Series 1995 B
Bonds, and in the case of Bank Bonds the Agent, entitled to
receive the payment of principal or interest thereon from the
Bond Insurer (i) as to the fact of such entitlement; (ii) that
the Bond Insurer will remit to them all or a part of the interest
payments next coming due upon proof of entitlement of holders of
Series 1995 B Bonds to interest payments and delivery to the
Insurance Trustee, in form satisfactory to the Insurance Trustee,
of an appropriate assignment of the registered owner's right to
payment; (iii) that should they be entitled to receive full
payment of principal from the Bond Insurer, they must surrender
their Series 1995 B Bonds (along with an appropriate instrument
of assignment in form satisfactory to the Insurance Trustee to
permit ownership of such Series 1995 B Bonds to be registered in
the name of the Bond Insurer) for payment to the Insurance
Trustee, and not the Trustee; and (iv) that should they be
entitled to receive partial payment of principal from the Bond
Insurer, they must surrender their Series 1995 B Bonds for
payment thereon first to the Trustee, who shall note on such
Series 1995 B Bonds the portion of the principal paid by the
Trustee and then, along with the appropriate instrument of
assignment in form satisfactory to the Insurance Trustee, to the
Insurance Trustee, which will then pay the unpaid portion of
principal.
(c) In the event that a Responsible Officer of the
Trustee has notice that any payment of principal of or interest
on a Series 1995 B Bond which has become due for payment and
which is made to a holder of a Series 1995 B Bond by or on behalf
of the Issuer has been deemed a preferential transfer and
theretofore recovered from its registered owner pursuant to the
United States Bankruptcy Code by a trustee in bankruptcy in
accordance with a final, nonappealable order of a court having
competent jurisdiction, the Trustee shall, at the time the Bond
Insurer is notified that the Trustee does not have sufficient
funds to pay principal of or interest on the Series 1995 B Bonds
on a Series 1995 B Interest Payment Date, notify all registered
owners that in the event that any registered owner's payment is
so recovered, such registered owner will be entitled to payment
from the Bond Insurer to the extent of such recovery if
sufficient funds are not otherwise available, and the Trustee
shall furnish to the Bond Insurer its records evidencing the
payments of principal of and interest on the Series 1995 B Bonds
which have been made by the Trustee and subsequently recovered
from registered owners and the dates on which such payments were
made.
SECTION 9.03. Deemed Holder for Default and Remedies. For
all purposes of Article VIII of the Indenture (other than Section
8.07 and the last sentence of Section 8.09), the Bond Insurer
shall be deemed to be the sole holder of the Series 1995 B Bonds.
The Trustee shall continue to provide notice to all holders of
bonds as provided in Sections 9.03 and 9.06 of the Indenture.
SECTION 9.04. Supplemental Indentures and Amendments to
Agreement. Anything in the Indenture to the contrary
notwithstanding, no consent or approval of any holder of Series
1995 B Bonds to any Supplemental Indenture pursuant to Article X
of the Indenture or to any amendment of the Agreement pursuant to
Article XI of the Indenture shall become effective without the
written consent of the Bond Insurer. In the case of any
Supplemental Indenture or any amendment to the Agreement
requiring the consent of holders of Series 1995 B Bonds, at least
15 Series 1995 B Business Days prior to executing such proposed
Supplemental Indenture or any amendment to the Agreement, the
Trustee shall give notice of such execution together with a copy
of such Supplemental Indenture or any amendment to the Agreement
to the Bond Insurer and to Moody's, if the Series 1995 B Bonds
are rated by such at the time, and S&P, if the Series 1995 B
Bonds are rated by such at the time. The Trustee shall give
notice to the Bond Insurer of any Supplemental Indenture or
amendment to the Agreement not requiring the consent of
bondholders.
SECTION 9.05. Successor Trustees. The Trustee shall give
written notice of its resignation, in accordance with Section
9.06 of the Indenture, to the Bond Insurer at the same time such
notice is given to the Issuer. The Issuer shall give notice to
the Bond Insurer of its removal of the Trustee and of its
appointment of a successor Trustee in the event of a resignation
or removal of the Trustee, all in accordance with Section 9.08 of
the Indenture. The Bond Insurer shall be treated as the sole
holder of Series 1995 B Bonds for purposes of approving any
successor Trustee.
SECTION 9.06. Bond Insurer as Party in Interest. The Bond
Insurer shall be included as a party in interest with respect to
the Series 1995 B Bonds and as a party entitled to (a) notify the
Trustee of the occurrence of an Event of Default, and (b) request
the Trustee to intervene in judicial proceedings that affect the
Series 1995 B Bonds or the security therefor. The Trustee shall
be required to accept notice of an Event of Default from the Bond
Insurer as the sole holder of the Series 1995 B Bonds.
SECTION 9.07. Access to the Register. Upon the occurrence
of an Event of Default which would require the Bond Insurer to
make payments of principal of or interest on the Series 1995 B
Bonds in accordance with the Series 1995 B Insurance Policy, the
Series 1995 B Registrar shall provide access to the books kept
for the registration of transfer of Series 1995 B Bonds to the
Bond Insurer, the Insurance Trustee or other designee of the Bond
Insurer.
SECTION 9.08. Notices to Bond Insurer. All notices,
consents or other communications required or permitted to be
given to the Bond Insurer under the Indenture shall be deemed
sufficiently given if given in writing, mailed by registered or
certified mail, postage prepaid and addressed as follows: AMBAC
Indemnity Corporation, One State Street Plaza, 17th Floor, New
York, New York 10004, Attention: General Counsel. The Bond
Insurer may from time to time give notice in writing to all
parties to the Sixth Supplemental Indenture designating a
different address or addresses for notice hereunder.
SECTION 9.09. Termination of Special Insurance
Requirements. The provisions of this Article shall apply only so
long as there is no Insurer Default as defined in Section 3.03(b)
hereof.
SECTION 9.10. Confirmation of Application of Term
"Outstanding" to Series 1995 B Bonds paid by Bond Insurer;
Recordation of Rights of Subrogation in Registration Books.
(a) Notwithstanding anything herein to the contrary,
in the event that the principal and/or interest due on the Series
1995 B Bonds shall be paid by the Bond Insurer pursuant to the
Series 1995 B Insurance Policy, the Series 1995 B Bonds (i) shall
continue to be outstanding within the meaning of the Indenture
for all purposes; (ii) shall not be considered defeased,
otherwise satisfied or paid by the Issuer; and (iii) the
assignment and pledge of the Indenture and all covenants,
agreements and other obligations of the Issuer and the Company to
the registered owners shall continue to exist and shall run to
the benefit of the Bond Insurer, and the Bond Insurer shall be
subrogated to the rights of such registered owners to the extent
of each such payment.
(b) To assist the Trustee in allocating available
moneys held under the Indenture, (i) in the case of subrogation
as to claims for past due interest, the Trustee shall note the
Bond Insurer's rights as subrogee on the registration books of
the Issuer maintained by the Trustee upon receipt from the Bond
Insurer of proof of the payment of interest thereon to the
registered owners of the Series 1995 B Bonds, and (ii) in the
case of subrogation as to claims for past due principal, the
Trustee shall note the Bond Insurer's rights as subrogee on the
registration books of the Issuer maintained by the Trustee upon
surrender of the Series 1995 B Bonds by the registered owners
thereof together with proof of the payment of principal thereof.
For purposes of this Article the following terms shall
have the following meanings:
"Immediate Notice" shall mean telephonic or telegraphic
notice, promptly followed by written notice by registered or
certified mail to such address as the addressee shall have
directed in writing; provided, however, that telephonic or
telegraphic notice shall be effective notwithstanding any
failure to receive such written notice.
"Insurance Trustee" shall mean United States Trust
Company of New York, or its successor, as Insurance Trustee
under the Series 1995 B Insurance Policy.
"Responsible Officer" shall mean an officer of the
Trustee assigned to the Trustee's corporate trust
department, including, without limitation, any Vice
President, any Assistant Vice President, any Trust Officer,
or any other officer performing functions similar to those
performed by the persons who at the time shall be such
officers and also means any other officer of the Trustee to
whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Successors and Assigns. This Sixth
Supplemental Indenture shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective
successors and assigns.
SECTION 10.02. Notices. Except as otherwise provided in
this Sixth Supplemental Indenture, all notices, certificates,
requests, directions or other communications by the Issuer, the
Company, the Bond Insurer, the Trustee, the Series 1995 B
Registrar, the Series 1995 B Remarketing Agent, each Series 1995
B Bank or the Agent, pursuant to this Sixth Supplemental
Indenture shall be in writing and shall be sufficiently given and
shall be deemed given when mailed by first class mail, postage
prepaid, addressed as follows:
if to the Issuer, to: City Hall
Rockport, IN 47635
Attention: Mayor
if to the Trustee, to: Norwest Bank Indiana, N.A.
111 East Wayne Street
P.O. Box 960
Fort Wayne, IN 46801-6642
Attention: Corporate Trust Dept.
if to the Company, to: Indiana Michigan Power Company
One Summit Square
Fort Wayne, IN 46801
Attention: President
with a copy to: American Electric Power Service
Corporation
1 Riverside Plaza
Columbus, OH 43215
Attention: Vice President-Finance
if to the Bond Insurer, to: AMBAC Indemnity Corporation
One State Street Plaza
New York, NY 10004
Attention: General Counsel
if to the Series 1995 B Registrar or a Series 1995 B Bank, such
address as is designated in writing by it to the Trustee and the
Issuer and if to the Series 1995 B Remarketing Agent, at the
address specified in the Remarketing Agreement and if to the
Agent or the Series 1995 B Bank, at the address specified in or
otherwise determined pursuant to the Standby Purchase Agreement.
Any of the foregoing may, by notice given hereunder to each of
the others, designate any further or different addresses to which
subsequent notices, certificates, requests or other
communications shall be sent hereunder.
SECTION 10.03. Applicable Law. This Sixth Supplemental
Indenture shall be governed by the laws of the State of Indiana.
SECTION 10.04. Counterparts. This Sixth Supplemental
Indenture may be executed in several counterparts, each of which
shall be an original, and all of which together shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, the City of Rockport, Indiana has caused
this Sixth Supplemental Indenture to be executed by its Mayor and
its corporate seal to be hereunto affixed and attested by its
Clerk-Treasurer, and Norwest Bank Indiana, N.A. has caused this
Sixth Supplemental Indenture to be executed by a First Vice
President and attested by a Vice President, all as of the date
first above written.
CITY OF ROCKPORT, INDIANA
By ___________________________
Mayor
(SEAL)
Attest:
_____________________________
Clerk-Treasurer
NORWEST BANK INDIANA, N.A.
As Trustee
By ___________________________
Vice President
(SEAL)
Attest:
_______________________________
Vice President
Exhibit A
(FORM OF FRONT OF BOND)
No. R-__ $__________
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE TIME
AND IN THE MANNER HEREINAFTER DESCRIBED AND MUST BE SO TENDERED
OR WILL BE DEEMED TO HAVE BEEN SO TENDERED UNDER CERTAIN
CIRCUMSTANCES AS DESCRIBED HEREIN.
UNITED STATES OF AMERICA
STATE OF INDIANA
CITY OF ROCKPORT, INDIANA
POLLUTION CONTROL REVENUE REFUNDING BOND
(INDIANA MICHIGAN POWER COMPANY PROJECT)
SERIES 1995 B
MATURITY DATE: June 1, 2025 CUSIP: 773835 ____
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
Type of Rate Period if other than Commercial Paper: __________
Last Day of Commercial Paper Rate Period* ____ Interest Rate* ____
Number of Days in Period*____ Interest Due at End of Period* ____
____________
* Complete only for Bonds accruing interest at Commercial Paper
Rates.
The City of Rockport, a municipal corporation and political
subdivision of the State of Indiana ("Issuer"), for value
received, hereby promises to pay, solely from the source and as
hereinafter provided, to the registered owner stated above, or
registered assigns, on the maturity date stated above or upon
earlier redemption hereof upon the presentation and surrender
hereof, the principal amount stated above together with interest
on said principal amount at the rate determined as herein
provided from the most recent Interest Payment Date (hereinafter
defined) to which interest has been paid or duly provided for or
from the date of authentication hereof if such date is on an
Interest Payment Date to which interest has been paid or duly
provided for, or from June 28, 1995 if no interest has been paid
or duly provided for, such payments of interest to be made on
each Interest Payment Date until payment of said principal sum.
The principal of this Bond is payable to the registered owner
hereof in immediately available funds or clearinghouse funds,
depending on the applicable Rate Period (as defined below) and
the instructions of the registered owner upon presentation and
surrender hereof at the principal office of Norwest Bank Indiana,
N.A., or its successor, as paying agent ("Paying Agent") under
the Sixth Supplemental Indenture of Trust dated as of June 1,
1995 between the Issuer and Norwest Bank Indiana, N.A., or its
successor, as trustee ("Sixth Supplemental Indenture"). All
payments of interest on Bonds accruing interest at Term Rates
shall be paid to the registered owner hereof whose name appears
in the Series 1995 B Bond Register kept by the Series 1995 B Bond
Registrar as of the applicable Regular or Special Record Dates
(defined below) by check in clearinghouse funds mailed on the
Interest Payment Date; provided that any registered owner of
$1,000,000 or more in aggregate principal amount of the Bonds
may, upon written request given to the Paying Agent at least five
Business Days (defined below) prior to an Interest Payment Date
designating an account in a bank within the continental United
States, be paid by wire transfer of immediately available funds.
All payments of interest on Bonds accruing interest at Commercial
Paper, Daily or Weekly Rates shall be paid to the registered
owner hereof whose name appears in the Series 1995 B Bond
Register kept by the Series 1995 B Bond Registrar as of the
applicable Regular or Special Record Dates in immediately
available funds by wire transfer to a bank within the continental
United States as directed by the registered owner in writing
prior to the time of payment with respect to Bonds accruing
interest at a Commercial Paper Rate or five Business Days prior
to the Interest Payment Date with respect to Bonds accruing
interest at Daily or Weekly Rates. Interest accrued during any
Commercial Paper Rate Period or due at maturity or redemption
shall be paid only upon presentation and surrender of the Bond.
The "Regular Record Date" for any Interest Payment Date is the
close of business on the day (whether or not a Business Day)
immediately preceding the Interest Payment Date, except that,
while this Bond accrues interest at the Term Rates (as described
herein), the Regular Record Date is the close of business on the
15th day (whether or not a Business Day) of the calendar month
immediately preceding such Interest Payment Date. Any interest
on any Bond which is payable, but is not punctually paid or
provided for, on any Interest Payment Date and within any
applicable grace period (herein called "Defaulted Interest")
shall cease to be payable to the registered owner hereof on the
relevant Regular Record Date by virtue of having been such
registered owner, and such Defaulted Interest shall be paid to
the person in whose name the Bond is registered at the close of
business on a "Special Record Date" to be fixed by the Trustee,
such date to be no more than 15 nor fewer than 10 days prior to
the date of proposed payment. A "Business Day" is any day of the
week other than Saturday, Sunday or other day (a) on which
commercial banks located in the cities in which the principal
offices of the Agent, the Trustee, the Remarketing Agent or the
Paying Agent are located are required or authorized by law to
close or (b) on which The New York Stock Exchange, Inc. is
closed. Capitalized terms not otherwise defined herein shall
have the meanings specified therefor in the Indenture.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH, FOR ALL PURPOSES
HEREOF, SHALL HAVE THE FORCE AND EFFECT AS IF PRINTED IN FULL ON
THE FRONT HEREOF.
All acts, conditions and things required to happen exist or
be performed precedent to the issuance of this Bond have
happened, exist and have been performed.
This Bond shall not become obligatory for any purpose or be
entitled to any security or benefit under the Indenture or be
valid until the Trustee or its Authenticating Agent shall have
executed the Certificate of Authentication appearing hereon.
This Bond and the issue of which it is a part and the
interest thereon are limited obligations of the Issuer payable
solely from the revenues and receipts derived from the Agreement
of Sale (except to the extent paid out of money attributable to
Bond proceeds or the proceeds of any instrument of credit
enhancement which may afford additional security for the Bonds),
which revenues and receipts have been pledged and assigned to the
Trustee to secure payment thereof. The Bonds and the interest
thereon shall not be deemed to constitute a debt or a pledge of
the faith and credit of the State of Indiana or any political
subdivision thereof other than the Issuer, whose obligations in
respect of the Bonds and the interest thereon are limited as set
forth herein and in the Indenture. Neither the Issuer, the State
of Indiana nor any other political subdivision thereof shall be
obligated to pay the principal or purchase price of the Bonds,
the premium, if any, or the interest thereon or other costs
incident thereto except from the revenues and receipts pledged
therefor. Neither the faith and credit nor the taxing power of
the Issuer or the State of Indiana or any other political
subdivision thereof is pledged to the payment of the principal or
purchase price of the Bonds, the premium, if any, or the interest
thereon or other costs incident thereto.
IN WITNESS WHEREOF, the City of Rockport, Indiana has caused
this Bond to be signed by the manual or facsimile signature of
its Mayor, its seal to be affixed hereto or a facsimile thereof
to be printed hereon and attested by the manual or facsimile
signature of its Clerk-Treasurer, and this Bond to be dated June
28, 1995.
CITY OF ROCKPORT, INDIANA
By________________________
Mayor
(SEAL)
Attest:
__________________________
Clerk-Treasurer
(CERTIFICATE OF AUTHENTICATION)
This Bond is one of the Bonds described in the within-
mentioned Indenture.
NORWEST BANK INDIANA, N.A.
as Trustee
By__________________________
Authorized Officer
Date: _________________
(FORM OF REVERSE OF BOND)
This Bond is one of an issue of $50,000,000 City of
Rockport, Indiana Pollution Control Revenue Refunding Bonds
(Indiana Michigan Power Company Project), Series 1995 B
("Bonds"), of like date and tenor, except as to number and
principal amount, authorized and issued pursuant to Indiana Code
36-7-11.9 and Indiana Code 36-7-12, for the purpose of refunding
Adjustable Rate Tender Pollution Control Revenue Refunding Bonds
(Indiana & Michigan Electric Company Project) Series 1985 A,
which were previously issued by the Issuer for the purpose of
refunding other bonds previously issued by the Issuer for the
purpose of acquiring, constructing, installing, equipping and
financing, in part, the portion of certain air and water
pollution abatement or control facilities, including sewage or
solid waste disposal facilities ("Project") at the Rockport
Generating Station ("Plant") owned by Indiana Michigan Power
Company, a corporation organized and existing under the laws of
the State of Indiana ("Company"), as tenant in common without
right of partition with AEP Generating Company, a corporation
organized and existing under the laws of the State of Ohio and
duly qualified to do business as a foreign corporation in the
State of Indiana, and selling the same to the Company pursuant to
an Agreement of Sale dated as of December 1, 1984 ("1984
Agreement"), as amended by the First Amendment to Agreement of
Sale dated as of July 1, 1985 ("First Agreement Amendment"), the
Second Amendment to Agreement of Sale dated as of February 1,
1995 ("Second Amendment Agreement"), and the Third Amendment to
Agreement of Sale dated as of June 1, 1995 ("Third Amendment
Agreement"), (the 1984 Agreement, as amended by the First
Agreement Amendment, the Second Amendment Agreement and the Third
Amendment Agreement, being herein referred to as the "Agreement
of Sale"), between the Issuer and the Company. The Bonds are
issued under an Indenture of Trust dated as of December 1, 1984,
as supplemented and amended by a First Supplemental Indenture of
Trust dated as of July 1, 1985 ("First Supplemental Indenture"),
a Second Supplemental Indenture of Trust dated as of July 1, 1985
("Second Supplemental Indenture"), a Third Supplemental Indenture
of Trust dated as of July 1, 1985 ("Third Supplemental
Indenture"), a Fourth Supplemental Indenture of Trust dated as of
June 1, 1990 ("Fourth Supplemental Indenture"), a Fifth
Supplemental Indenture of Trust dated as of February 1, 1995
("Fifth Supplemental Indenture") and the Sixth Supplemental
Indenture (the Indenture of Trust, as supplemented and amended by
the First Supplemental Indenture, the Second Supplemental
Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture, the Fifth Supplemental Indenture and the
Sixth Supplemental Indenture being referred to herein as the
"Indenture"), between the Issuer and the Trustee which assigns to
the Trustee, as security for the Bonds, the Issuer's rights under
the Agreement of Sale (except for payment of Issuer expenses and
for indemnification of the Issuer). Reference is hereby made to
the Indenture, the Agreement of Sale and to all amendments and
supplements thereto for a description of the provisions, among
others, with respect to the nature and extent of the security,
the rights, duties and obligations of the Issuer and the Trustee
and the rights of the holders of the Bonds and the terms upon
which the Bonds are issued and secured.
Interest on the Bonds
The Bonds shall initially accrue interest at a Weekly Rate
herein described, and will be subject to conversion as herein
provided. The rate of interest applicable to any Rate Period
shall be determined in accordance with the applicable provisions
of the Indenture and may not exceed 18% per annum, except that
while a Standby Purchase Agreement is in effect, it shall not
exceed the rate used to determine the available interest
commitment, initially 12%, under the Standby Purchase Agreement.
The amount of interest so payable on any Interest Payment Date
shall be computed (a) on the basis of a 365- or 366-day year for
the number of days actually elapsed during Daily Rate Periods;
(b) on the basis of a 365- or 366-day year for the number of days
actually elapsed based on the calendar year in which the
Commercial Paper Rate Period or the Weekly Rate Period commences,
during Commercial Paper Rate Periods or Weekly Rate Periods; and
(c) on the basis of a 360-day year of twelve 30-day months during
Term Rate Periods.
"Rate Period" shall mean, when used with respect to any
particular rate of interest determined as hereinafter provided,
the period from and including the effective date of such rate to
(but not including) the effective date of the rate of interest
next determined as hereinafter provided. The rates of interest
for the Bonds, other than Bank Bonds, which will be determined by
the Remarketing Agent, are as follows:
Commercial Paper Rate
While the Bonds accrue interest at Commercial Paper
Rates, the interest rate for each particular Bond will be
determined by the Remarketing Agent as the minimum rate of
interest necessary, in the judgment of the Remarketing
Agent, to enable the Remarketing Agent to sell such Bond on
that day at a price equal to the principal amount thereof,
and with respect to Commercial Paper Rates, the Remarketing
Agent shall determine the Commercial Paper Rate and the
Commercial Paper Rate Period for each Bond at such rate and
for such period as it deems advisable in order to minimize
the net interest cost on the Bonds, taking into account
prevailing market conditions, and will remain in effect from
and including the commencement date of the Commercial Paper
Rate Period selected for that Bond by the Remarketing Agent
to, but not including, the last date thereof. While the
Bonds accrue interest at Commercial Paper Rates, Bonds may
have successive Commercial Paper Rate Periods and any Bond
may accrue interest at a rate and for a period different
from any other Bond. No Commercial Paper Rate Period may be
established which (i) is less than one day or exceeds 270
days; (ii) extends beyond the day preceding the Maturity
Date; (iii) if a Standby Purchase Agreement is then in
effect, (A) exceeds the maximum number of days' interest
coverage provided by such Standby Purchase Agreement minus 5
days, or (B) extends beyond the remaining term of such
Standby Purchase Agreement minus 5 days; or (iv) if the
Remarketing Agent has given or received notice of any
conversion to a Term Rate Period, exceeds the remaining
number of days prior to the Conversion Date or, if the
Remarketing Agency has given or received notice of any
conversion to a Daily Rate or Weekly Rate, exceeds (A) the
period that shall enable the Commercial Paper Rate Periods
for all Bonds to end on the day before the Conversion Date,
or (B) the period that, based on the Remarketing Agent's
judgment, will best promote an orderly transition to the
next Interest Rate Period.
Daily Rate
While the Bonds accrue interest at a Daily Rate, the
interest rate established for the Bonds will be effective
from day to day until changed by the Remarketing Agent in
accordance with the Indenture.
Weekly Rate
While the Bonds accrue interest at a Weekly Rate, the
rate of interest on the Bonds will be determined weekly by
the Remarketing Agent in accordance with the Indenture with
such interest rate commencing on Wednesday of the week of
such determination and ending on Tuesday of the following
week. (The length of the period, the day of commencement
and the last day of the period may vary in the event of a
conversion to or from a Weekly Rate.)
Term Rate
While the Bonds accrue interest at a Term Rate, the
interest rate will be determined by the Remarketing Agent in
accordance with the Indenture and will remain in effect for
a term of at least one year selected by the Company;
provided that if a Standby Purchase Agreement is then in
effect, such Standby Purchase Agreement must extend for a
period of 5 days beyond the first date on which the Bonds
can be called for optional redemption during the proposed
Term Rate Period and the Standby Purchase Agreement must
cover the premium, if any, which would be included in the
Purchase Price of the Bonds if the Bonds were subject to
mandatory tender because the Standby Purchase was not
extended beyond its then current Expiration Date. The Rate
Period established will remain in effect until changed by
the Company, in accordance with the Indenture.
Bank Rate
Bank Bonds accrue interest at the Bank Rate from the
day the Bonds are purchased with money provided by the
Standby Purchase Agreement until (but not including) the day
such Bank Bonds are remarketed, purchased by the Company or
paid at maturity or upon acceleration or redemption.
Authorized Denominations
Bonds which accrue interest at Commercial Paper Rates will
be issued in the denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. Bonds which accrue
interest at a Daily or Weekly Rate will be issued in
denominations of $100,000 or whole multiples thereof. Bonds
which accrue interest at a Term Rate will be issued in the
denominations of $5,000 or whole multiples thereof.
Optional Tenders
While this Bond accrues interest at a Daily or Weekly Rate,
the registered owner of this Bond has the right to tender this
Bond for purchase at 100% of the principal amount hereof plus
accrued interest as follows: (i) during a Daily Rate Period on
any Business Day upon irrevocable written or Electronic notice to
the Paying Agent prior to 11:00 a.m., New York City time, on the
Purchase Date; and (ii) during a Weekly Rate Period on any
Business Day upon irrevocable written or Electronic notice to the
Paying Agent prior to 5:00 p.m., New York City time, on a
Business Day not fewer than 7 days prior to the Purchase Date.
While this Bond accrues interest at a Term Rate, the registered
owner of this Bond has the right to tender this Bond for purchase
at 100% of the principal amount hereof on the commencement date
of the next succeeding Rate Period upon irrevocable written or
Electronic notice to the Paying Agent prior to 5:00 p.m., New
York City time, on a Business Day not fewer than 7 days prior to
the Purchase Date. If this Bond is also subject to mandatory
tender on such date, the provisions of the next section shall
govern the purchase.
Mandatory Tenders
While this Bond accrues interest at a Commercial Paper Rate,
this Bond is subject to mandatory tender on each Interest Payment
Date applicable to this Bond at a Purchase Price equal to 100% of
the principal amount thereof plus interest accrued during the
Commercial Paper Rate Period.
This Bond is subject to mandatory tender on the effective
date of a conversion from one Rate Period to a different Rate
Period (except for conversions from a Daily Rate and Weekly Rate
or from a Weekly Rate to a Daily Rate) or a conversion from a
Term Rate Period to a Term Rate Period of different duration at a
Purchase Price equal to 100% of the principal amount thereof plus
accrued interest; provided that the Purchase Price for Bonds
converted from a Term Rate Period on a date when such Bonds are
also subject to optional redemption at a premium shall include an
amount equal to the premium that would be payable if such Bonds
were redeemed on such date.
The Bonds are subject to mandatory tender for purchase on
the Business Day next preceding the Expiration Date of the
current Standby Purchase Agreement unless at least 25 days (or
such shorter period as shall be acceptable to the Trustee) prior
to such Business Day, (i) the Trustee has received notice that
the Standby Purchase Agreement has been extended; or (ii) the
Trustee has received an Alternate Liquidity Facility and written
evidence with respect to the ratings of the Bonds pursuant to the
Agreement of Sale; or (iii) if the Standby Purchase Agreement is
not extended and no Alternate Liquidity Facility is provided, the
Trustee has received written evidence of the ratings on the Bonds
required by the Agreement of Sale at a Purchase Price equal to
100% of the principal amount thereof plus accrued interest, plus,
if the Bonds accrue interest at a Term Rate, the premium, if any,
which would be payable if the Bonds were optionally redeemed on
the mandatory tender date.
BY ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREOF
AGREES THAT THIS BOND WILL BE PURCHASED, WHETHER OR NOT
SURRENDERED, ON THE PURCHASE DATE AS DESCRIBED ABOVE. IN SUCH
EVENT, THE REGISTERED OWNER OF THIS BOND SHALL NOT BE ENTITLED TO
RECEIVE ANY FURTHER INTEREST HEREON, SHALL HAVE NO FURTHER RIGHTS
UNDER THIS BOND OR THE INDENTURE EXCEPT TO RECEIVE PAYMENT OF THE
PURCHASE PRICE HELD THEREFOR, AND SHALL THEREAFTER HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
The initial Remarketing Agent for the Bonds is Goldman,
Sachs & Co. The Remarketing Agent may be changed at any time in
accordance with the Indenture.
Written Notice of Rate Period Change
The Trustee shall give notice, by first class mail, to the
registered owners of all Bonds of the proposed conversion from
one Rate Period to another Rate Period at least 15 days before
the proposed conversion date while the Bonds accrue interest at
Commercial Paper, Daily or Weekly Rates, and at least 30 days
before the proposed conversion date while the Bonds accrue
interest at a Term Rate.
Interest Payment Dates
While this Bond accrues interest at a Commercial Paper Rate,
interest is payable on the day after the last day of each
Commercial Paper Rate Period. While this Bond accrues interest
at Daily or Weekly Rates, interest is payable on the first
Business Day of each calendar month following a month in which
interest at such rate has accrued. During any Term Rate Period,
interest is payable on the first day of the sixth calendar month
following the month in which the Term Rate Conversion Date occurs
and the first day of each sixth month thereafter, except that the
last Interest Payment Date for any Term Rate Period is the
commencement date of the following Term Rate Period or the date
on which a different Rate Period becomes effective. The final
Interest Payment Date for this Bond is the Maturity Date.
Interest on Bank Bonds is payable (i) on the first day of each
month succeeding the date on which such Bank Bond was purchased
by the Series 1995 B Bank; (ii) each day on which any principal
of such Bank Bond is paid at maturity or upon acceleration or
redemption; and (iii) when such Bank Bond is remarketed or sold
to the Company, the day on which the Bond is delivered to the
purchaser.
Redemption
The Bonds shall be subject to redemption at the election of
the Company in whole or in part (less than all of the Bonds to be
redeemed to be selected by lot), as follows:
(i) If the Bonds accrue interest at Commercial
Paper, Daily or Weekly Rates, the Bonds are subject to
optional redemption on any Interest Payment Date with
respect to such Bond at an optional redemption price equal
to the principal amount thereof, together with accrued
interest to the redemption date.
(ii) If the Bonds accrue interest at a Term Rate, the
Bonds are subject to optional redemption (A) at any time on
and after the dates and at the optional redemption prices
set forth below, together with accrued interest, if any, to
the redemption date and (B) on the day immediately following
the end of each Term Rate Period at the redemption price of
100% of the principal amount thereof, together with accrued
interest, if any, to the redemption date:
<TABLE>
<CAPTION>
Commencement of Redemption Price
Length of Term Rate Period Redemption Period as Percentage of Principal
<C> <C> <C>
Greater than or equal to 15 Tenth anniversary of the 102%, declining by 1% on
years commencement of Term Rate each succeeding anniversary
Period of the first day of the
redemption period until
reaching 100% and thereafter
at 100%
Less than 15 years and Seventh anniversary of the 102%, declining by 1% on
greater than or equal to 10 commencement of Term Rate each succeeding anniversary
years Period of the first day of the
redemption period until
reaching 100% and thereafter
at 100%
Less than 10 years but Fifth anniversary of the 101%, declining by 0.5% on
greater than 5 years commencement of Term Rate each succeeding anniversary
Period of the first day of the
redemption period until
reaching 100% and thereafter
at 100%
Less than or equal to 5 Series 1995 B Bonds not
years subject to optional
redemption until
commencement of next Term
Rate Period
</TABLE>
The optional redemption dates and redemption prices set
forth above may be changed by a supplemental indenture approved
by the Company, filed with the Trustee and provided to the
Remarketing Agent, provided that any such supplemental indenture
shall be accompanied by a Favorable Opinion of Series 1995 B Bond
Counsel.
Bonds accruing interest at a Term Rate are subject to
extraordinary optional redemption at the election of the Company
at any time in whole, but not in part, upon payment of 100% of
the principal amount thereof plus interest accrued to the
redemption date, if the Company exercises its option to prepay
the entire purchase price of the Project under circumstances
involving (i) the imposition of unreasonable burdens or excessive
liabilities with respect to the Project or the Plant, or the
operation of the Project or the Plant, including taxes not
imposed on December 1, 1984 and economic, technological or other
changes making the continued operation of the Plant uneconomical;
(ii) damage to or destruction of the Project or a portion thereof
or all or a portion of the Plant; (iii) condemnation of all or
substantially all of the Project or all or a portion of the
Plant; or (iv) the operation of the Plant being enjoined, all as
provided in Section 8.1(b) through (e) of the Agreement of Sale.
Bank Bonds are subject to optional and mandatory redemption
as provided in the Indenture.
If any of the Bonds or portions thereof are called for
redemption, the Trustee shall cause a notice thereof identifying
the Bonds to be redeemed to be sent by registered or certified
mail to the registered owner of each such Bond to be redeemed at
his address as it appears on the registration books not less than
30 nor more than 60 days prior to the redemption date. If a
portion of this Bond shall be called for redemption, a new Bond
in principal amount equal to the unredeemed portion hereof will
be issued to the registered owner upon the surrender hereof.
Transfer of Bonds
This Bond is transferable by the registered owner hereof at
the designated office of the Series 1995 B Bond Registrar, upon
surrender of this Bond accompanied by a duly executed instrument
of transfer in form and with guaranty of signature satisfactory
to the Series 1995 B Bond Registrar, subject to such reasonable
regulations as the Issuer or the Series 1995 B Bond Registrar may
prescribe, and upon payment of any tax or other governmental
charge incident to such transfer. Upon any such transfer, a new
Bond or Bonds in the same aggregate principal amount will be
issued to the transferee. Except as set forth in this Bond and
as otherwise provided in the Indenture, the person in whose name
this Bond is registered shall be deemed the owner hereof for all
purposes, and the Issuer, any Paying Agent, the Series 1995 B
Bond Registrar, the Remarketing Agent, the Authenticating Agent
and the Trustee shall not be affected by any notice to the
contrary.
The owner of this Bond shall have no right to enforce the
provisions of the Indenture, to institute action to enforce the
covenants therein or to take any action with respect to any Event
of Default under the Indenture or to institute, appear in or
defend any suit or other proceeding with respect thereto, except
as provided in the Indenture. In certain events, on conditions,
in the manner and with the effect set forth in the Indenture, the
principal of all the Bonds issued under the Indenture and then
outstanding may become or may be declared due and payable before
their stated maturities, together with interest accrued thereon.
Modifications or alterations of the Indenture, or of any
supplements thereto, may be made only to the extent and in the
circumstances permitted by the Indenture.
FORM OF ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of the within Bond, shall be construed as though they
were written out in full according to applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF TRANF MIN ACT - ___________ Custodian _________________
(Cust) (Minor)
Under Uniform Transfer to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in list
above.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ___________________________
(Please insert Social Security or taxpayer identification number
of assignee)
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
________________________________________________________________
the within Bond, and all rights thereunder, and hereby does
irrevocably constitute and appoint _____________________________
Attorney to transfer the within Bond on the books kept for the
registration thereof, with full power of substitution in the
premises.
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Bond in every
particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: ___________________________________
NOTICE: Signature(s) must be
guaranteed by an Eligible Guarantor
Institution such as a Commercial
Bank, Trust Company, Securities
Broker/Dealer, Credit Union, or
Savings Association who is a member
of a medallion program approved by
The Securities Transfer
Association, Inc.
STATEMENT OF INSURANCE
Municipal Bond Insurance Policy No. (the "Policy")
with respect to payments due for principal of and interest on
this bond has been issued by AMBAC Indemnity Corporation ("AMBAC
Indemnity"). The Policy has been delivered to the United States
Trust Company of New York, New York, New York, as the Insurance
Trustee under said Policy and will be held by such Insurance
Trustee or any successor insurance trustee. The Policy is on
file and available for inspection at the principal office of the
Insurance Trustee and a copy thereof may be secured from AMBAC
Indemnity or the Insurance Trustee. All payments required to be
made under the Policy shall be made in accordance with the
provisions thereof. The owner of this bond acknowledges and
consents to the subrogation rights of AMBAC Indemnity as more
fully set forth in the Policy.
Exhibit 12
DRAFT
6/5/95
STANDBY BOND PURCHASE AGREEMENT
Dated as of June 28, 1995
among
INDIANA MICHIGAN POWER COMPANY,
THE BANKS PARTY HERETO
and
THE BANK OF NEW YORK
as Agent
Relating to $50,000,000
City of Rockport, Indiana
Pollution Control Revenue Refunding Bonds
(Indiana Michigan Power Company Project)
Series 1995 B
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
Section 1.01. Certain Defined Terms . . . . . . . . . . 1
Section 1.02. Accounting Terms and Determinations . . 11
Section 1.03. Basis for Ratings . . . . . . . . . . . 11
ARTICLE II.
TERMS OF THE COMMITMENT TO
PURCHASE UNREMARKETED BONDS
Section 2.01. Commitment of the Banks to Purchase
Unremarketed Bonds . . . . . . . . . . 11
Section 2.02. Method of Purchase of Unremarketed
Bonds . . . . . . . . . . . . . . . . . 12
Section 2.03. Bank Bonds . . . . . . . . . . . . . . 12
Section 2.04. Remarketing of Bank Bonds . . . . . . . 14
Section 2.05. Interest Rates . . . . . . . . . . . . 15
Section 2.06. Method of Electing Interest Rates . . . 16
Section 2.07. Fees . . . . . . . . . . . . . . . . . 18
(a) Commitment Fee . . . . . . . . . . . . . . . 18
(b) Payments . . . . . . . . . . . . . . . . . . 18
Section 2.08. Reduction of Commitment . . . . . . . . 19
Section 2.09. Termination of Commitment . . . . . . . 19
Section 2.10. Extensions of Stated Expiration Date . 20
Section 2.11. Repayment and Prepayment of
Disbursements . . . . . . . . . . . . . 20
(a) Scheduled Repayments . . . . . . . . . . . . 20
(b) Mandatory Prepayments . . . . . . . . . . . 20
(c) Ratable Application . . . . . . . . . . . . 21
Section 2.12. Changes in Circumstances . . . . . . . 21
(a) Basis for Determining Interest Rate
Inadequate or Unfair . . . . . . . . . . . . 21
(b) Illegality . . . . . . . . . . . . . . . . . 21
(c) Domestic Disbursements Substituted for
Affected Euro-Dollar Disbursements . . . . . 22
ARTICLE III.
OBLIGATIONS OF COMPANY
Section 3.01. Increased Costs . . . . . . . . . . . . 23
Section 3.02. Capital Adequacy . . . . . . . . . . . 24
Section 3.03. Withholding Tax Exemption . . . . . . . 24
Section 3.04. Payments . . . . . . . . . . . . . . . 25
Section 3.05. Computation of Interest and Fees . . . 25
Section 3.06. Payment on Non-Business Days . . . . . 25
Section 3.07. Funding Losses . . . . . . . . . . . . 26
Section 3.08. Replacement of Bank . . . . . . . . . . 26
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent Subject to
Fulfillment on the Closing Date . . . . 27
Section 4.02. Additional Conditions Precedent Subject
to Fulfillment on the Closing Date . . 28
Section 4.03. Conditions Subject to Fulfillment on
Each Purchase Date . . . . . . . . . . 29
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties . . . . 30
Section 5.02. Representations in Related Documents
True and Correct . . . . . . . . . . . 33
ARTICLE VI.
COVENANTS
Section 6.01. Performance of This and Other
Agreements . . . . . . . . . . . . . . 33
Section 6.02. Further Assurances . . . . . . . . . . 33
Section 6.03. Maintenance of Trustee and Agents . . . 34
Section 6.04. Amendments . . . . . . . . . . . . . . 34
Section 6.05. Offering Circular . . . . . . . . . . . 35
Section 6.06. Remarketing . . . . . . . . . . . . . . 35
Section 6.07. Substitute Liquidity Facility . . . . . 35
Section 6.08. Remarketing Agent . . . . . . . . . . . 35
Section 6.09. Other Agreements . . . . . . . . . . . 35
Section 6.10. Reporting Requirements . . . . . . . . 36
Section 6.11. Notices . . . . . . . . . . . . . . . . 36
Section 6.12. Maintenance of Existence, Etc. . . . . 36
Section 6.13. Compliance with Laws . . . . . . . . . 37
Section 6.14. Limitations on Liens, Etc . . . . . . . 37
Section 6.15. Pension Plans . . . . . . . . . . . . . 38
Section 6.16. Limitations on Borrowing . . . . . . . 38
Section 6.17. Limitations on Mergers . . . . . . . . 39
ARTICLE VII.
EVENTS OF DEFAULT; REMEDIES
Section 7.01. Events of Default . . . . . . . . . . . 39
Section 7.02. Remedies . . . . . . . . . . . . . . . 41
(a) Suspension of Banks' Obligations . . . . . . 41
(b) Termination . . . . . . . . . . . . . . . . 43
(c) Other Remedies . . . . . . . . . . . . . . . 43
(d) Nature of Remedies . . . . . . . . . . . . . 43
Section 7.03. Copies of Notices . . . . . . . . . . . 43
ARTICLE VIII.
THE AGENT AND THE BANKS
Section 8.01. Appointment and Authorization . . . . . 44
Section 8.02. Nature of Duties . . . . . . . . . . . 44
Section 8.03. Agent and Affiliates . . . . . . . . . 44
Section 8.04. Consultation with Experts . . . . . . . 44
Section 8.05. Liability of Agent . . . . . . . . . . 44
Section 8.06. Acknowledgement of Independent Appraisal
by Each Bank . . . . . . . . . . . . . . 45
Section 8.07. Indemnification of the Agent . . . . . 45
Section 8.08. Notices Received by the Agent . . . . . 46
Section 8.09. Successor Agent . . . . . . . . . . . . 46
Section 8.10. Excess Payments . . . . . . . . . . . . 46
Section 8.11. Payments to Banks . . . . . . . . . . . 47
Section 8.12. Disbursements of Purchase Price of
Unremarketed Bonds . . . . . . . . . . 47
Section 8.13. Agent's Fee . . . . . . . . . . . . . . 48
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Amendments, Etc. . . . . . . . . . . . 48
Section 9.02. Notices, Etc. . . . . . . . . . . . . . 49
Section 9.03. No Waiver: Remedies . . . . . . . . . . 49
Section 9.04. Indemnification . . . . . . . . . . . . 50
Section 9.05. Liability of the Agent and the Banks . 50
Section 9.06. Costs, Expenses and Taxes . . . . . . . 51
Section 9.07. Binding Effect; Assignment;
Participations . . . . . . . . . . . . 52
Section 9.08. Severability . . . . . . . . . . . . . 53
Section 9.09. Governing Law . . . . . . . . . . . . . 53
Section 9.10. Waiver of Jury Trial . . . . . . . . . 53
Section 9.10. Jurisdiction; Service of Process . . . 53
Section 9.11. Survival of Representations and
Warranties . . . . . . . . . . . . . . 53
Section 9.12. Entirety . . . . . . . . . . . . . . . 54
Section 9.13. Execution in Counterparts . . . . . . . 54
Section 9.14. Headings . . . . . . . . . . . . . . . 54
Section 9.15. Effectiveness . . . . . . . . . . . . . 54
Section 9.16. Beneficiaries . . . . . . . . . . . . . 54
EXHIBIT A - Form of Certificate Requesting Purchase of
Unremarketed Bonds
EXHIBIT B - Form of Notice of Interest Rate Election
EXHIBIT C - Form of Extension Agreement
STANDBY BOND PURCHASE AGREEMENT
This STANDBY BOND PURCHASE AGREEMENT, dated as of June
28, 1995, among INDIANA MICHIGAN POWER COMPANY, an Indiana
corporation, THE BANKS PARTY HERETO, and THE BANK OF NEW YORK, as
Agent.
WITNESSETH:
WHEREAS, pursuant to the Indenture (such term and all
other capitalized terms used in these recitals having the
meanings set forth or referred to in Section 1.01), the Issuer is
issuing the Bonds for purposes of refunding the Prior Bonds;
WHEREAS, the payment of the principal of and interest
(at a rate per annum not in excess of 18%) on the Bonds
(including Unremarketed Bonds purchased by the Banks pursuant to
this Agreement) is to be insured by the Bond Insurance Policy to
be issued by the Bond Insurer for the benefit of the holders from
time to time of the Bonds (including the Banks); and
WHEREAS, in order to provide liquidity support for the
Bonds, the Company has requested the Banks, severally and not
jointly and severally, to agree, subject to the terms and
conditions of this Agreement, to purchase Unremarketed Bonds from
time to time;
NOW, THEREFORE, in consideration of the premises, and
in order to induce the Banks to purchase Unremarketed Bonds from
time to time, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Certain Defined Terms. The following
terms, as used herein, have the following meanings:
"Adjusted London Interbank Offered Rate" has the
meaning specified in Section 2.05(b).
"Administrative Questionnaire" means, with respect to
each Bank, the administrative questionnaire in the form submitted
to such Bank by the Agent and submitted to the Agent duly
completed by such Bank.
"Agent" means The Bank of New York, in its capacity as
agent for the Banks under this Agreement, or any successor
thereto appointed in accordance with Section 8.09.
"Agreement" means this Standby Bond Purchase Agreement,
dated as of June 28, 1995, among the Company, the Banks and the
Agent, as amended from time to time.
"Agreement of Sale" means the Agreement of Sale, dated
as of December 1, 1984, between the Issuer and the Company, as
amended.
"Applicable Lending Office" means, with respect to any
Bank, (i) in the case of its Domestic Disbursements, its Domestic
Lending Office and (ii) in the case of its Euro-Dollar
Disbursements, its Euro-Dollar Lending Office.
"Applicable Margin" has the meaning specified in
Section 2.05(b).
"Assignee" has the meaning specified in Section
9.07(c).
"Available Interest Commitment" means, as to any Bank,
initially the amount set forth on the signature pages hereto as
the "Initial Available Interest Commitment" for such Bank, which
amount is equal to 35 days of accrued interest on such Bank's
Percentage Share of the aggregate principal amount of the Bonds,
calculated at the rate of 12% per annum and on the basis of the
actual number of days elapsed in a year of 365 or 366 days, as
applicable, and thereafter shall mean such initial amount as
adjusted automatically (without any necessity for confirmation or
notice by the Agent or any Bank) from time to time as follows:
(i) simultaneously with any decrease in the Available Principal
Commitment of such Bank, downward to an amount equal to 35 days
of accrued interest on the Available Principal Commitment of such
Bank as in effect after taking into account such decrease,
calculated at the rate of 12% per annum and on the basis of the
actual number of days elapsed in a year of 365 or 366 days, as
applicable; and (ii) simultaneously with any increase in the
Available Principal Commitment of such Bank, upward to an amount
equal to 35 days of accrued interest on the Available Principal
Commitment of such Bank as in effect after taking into account
such increase, calculated at the rate of 12% per annum and on the
basis of the actual number of days elapsed in a year of 365 or
366 days, as applicable.
"Available Principal Commitment" means, as to any Bank,
initially the amount set forth on the signature pages hereto as
the "Initial Available Principal Commitment" for such Bank, which
amount is equal to such Bank's Percentage Share of the aggregate
principal amount of the Bonds, and thereafter shall mean such
initial amount as adjusted automatically (without any necessity
for confirmation or notice by the Agent or any Bank) from time to
time as follows: (i) upon receipt by the Agent of written notice
given pursuant to Section 2.08(a), downward by an amount equal to
such Bank's Percentage Share of the principal amount of Bonds
that are redeemed, purchased and canceled, defeased or otherwise
retired, in any case, as set forth in such notice; (ii) upon the
purchase by such Bank of any Unremarketed Bonds pursuant to
Section 2.01, downward by an amount equal to the principal amount
of Unremarketed Bonds that are so purchased by such Bank; (iii)
upon the release of any Bank Bonds pursuant to Section 2.04,
upward by an amount equal to such Bank's Percentage Share of the
principal amount of such Bank Bonds released pursuant to said
Section; and (iv) upon any assignment pursuant to Section 9.07(c)
or 3.08, upward or downward as set forth in the related
instrument of assignment and assumption entered into in
accordance with such Section.
"Bank" means (i) each bank listed on the signature
pages of this Agreement, (ii) each Assignee which becomes a Bank
pursuant to Section 9.07(c), (iii) each substitute bank which
becomes a Bank pursuant to Section 3.08, and (iv) the successors
of each of the foregoing.
"Bank Information" has the meaning assigned to that
term in Section 9.04(a).
"Bank Bond" means any Bond or portion thereof purchased
by a Bank pursuant to Section 2.01 (it being understood that a
Bond shall cease to be a Bank Bond only in the manner and at the
time specified in Section 2.04).
"Bank Rate" means, with respect to each Bank Bond, that
rate of interest necessary to produce an amount equal to interest
at the "prime rate" (as defined in the Indenture), or with
respect to any overdue amount, the "prime rate" (as so defined)
plus two percent (2%), calculated on (i) the principal amount of
such Bank Bond plus (ii) to the extent permitted by law, the
amount of accrued interest paid by the Banks to purchase such
Bank Bond, until such principal and accrued interest have been
paid to the Banks.
"Base Rate" means, for any day, an interest rate per
annum equal to the greater of (i) the Prime Rate in effect for
such day, and (ii) the sum of the Federal Funds Rate in effect
for such day plus 0.50%.
"Bond Documents" means the Bonds, the Agreement of Sale
and the Indenture.
"Bond Insurance Policy" means the municipal bond
insurance policy issued by the Bond Insurer (including any riders
and endorsements thereto) with respect to the Bonds.
"Bond Insurer" means (a) AMBAC Indemnity Corporation, a
Wisconsin-domiciled stock insurance company, and (b) any other
insurance or indemnity company or other type of financial
institution that either replaces AMBAC Indemnity Corporation as
"Bond Insurer" under and as defined in the Indenture or is
provided as an additional "Bond Insurer" under and as defined in
the Indenture, in any case with consent of the Company and all of
the Banks.
"Bond Insurer Event of Insolvency" means the occurrence
and continuance of one or more of the following events: (a) the
issuance of an order of rehabilitation, liquidation or
dissolution of the Bond Insurer; (b) the commencement by the Bond
Insurer of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect including, without
limitation, the appointment of a trustee, receiver, liquidator,
custodian or other similar official for itself or any substantial
part of its property; (c) the consent of the Bond Insurer to or
the acquiescence by the Bond Insurer in any case or proceeding
described in the preceding clause (b) that is commenced against
it; (d) the making by the Bond Insurer of an assignment for the
benefit of creditors; (e) the failure of the Bond Insurer or the
admission by the Bond Insurer in writing of its inability to
generally pay its debts or claims as they become due; (f) the
initiation by the Bond Insurer of any actions to authorize any of
the foregoing; (g) the commencement of an involuntary case or
other proceeding against the Bond Insurer seeking liquidation,
reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary
case remaining undismissed and unstayed for a period of 60 days;
or (h) the entering of an order for relief against the Bond
Insurer under the federal bankruptcy laws as now or hereafter in
effect.
"Bond Insurer Potential Insolvency" means any event or
condition which would become a Bond Insurer Event of Insolvency
under clause (g) of the definition thereof after the lapse of the
60-day period referred to in such clause (g).
"Bonds" means the City of Rockport, Indiana Pollution
Control Revenue Refunding Bonds (Indiana Michigan Power Company
Project) Series 1995 B, issued and secured under the Indenture in
the aggregate original principal amount of $50,000,000. The term
"Bonds" means and includes Unremarketed Bonds.
"Capitalization" means, as of any particular time, with
respect to the Company and its Consolidated Subsidiaries
determined on a consolidated basis, an amount equal to the sum of
the total principal amount of all indebtedness for borrowed money
[(including, but not limited to, guaranties by the Company or any
such Subsidiary of indebtedness for borrowed money of any entity
other than the Company or any such Subsidiary)], secured or
unsecured, of the Company and its Consolidated Subsidiaries then
outstanding (whether or not such indebtedness matures, pursuant
to the instrument by which such indebtedness shall be created or
incurred, within twelve months after such particular time) and
the aggregate of the par value of, or stated capital represented
by, the outstanding shares of all classes of stock and of the
surplus of the Company and its Consolidated Subsidiaries, paid
in, earned and other, if any.
"Closing Date" means June 28, 1995.
"Combined Available Commitment" means, as to any Bank,
on any date, an amount equal to the sum of (i) the Available
Principal Commitment of such Bank as in effect on such date, and
(ii) the Available Interest Commitment of such Bank as in effect
on such date.
"Commitment Termination Date" has the meaning assigned
to that term in Section 2.09(a).
"Company" means Indiana Michigan Power Company, an
Indiana corporation.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated
financial statements if such statements were prepared as of such
date in accordance with generally accepted accounting principles.
Unless otherwise provided, references to Consolidated
Subsidiaries shall be deemed references to Consolidated
Subsidiaries of the Company.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
"Disbursement" means a disbursement made by a Bank of
its Percentage Share of the Purchase Price of Unremarketed Bonds
purchased on any Purchase Date pursuant to Section 2.01. Each
Disbursement consists of a Principal Disbursement and, if the
Purchase Price of the Unremarketed Bonds being purchased includes
accrued interest thereon, an Interest Disbursement.
"Disbursement Group" or "Group" means at any time a
group of Disbursements consisting of (i) all Disbursements which
are Domestic Disbursements at such time or (ii) all Disbursements
which are Euro-Dollar Disbursements having the same Interest
Period at such time; provided that if a Disbursement of any
particular Bank is converted to or made as a Domestic
Disbursement pursuant to Section 2.12(b) or 2.12(c), such
Disbursement shall be included in the same Disbursement Group
from time to time as it would have been in if it had not been so
converted or made.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required by law to close.
"Domestic Disbursement" means a Disbursement which,
pursuant to Section 2.06 or Section 2.12, bears interest at a
rate of interest determined on the basis of the Base Rate in
accordance with Section 2.05(a).
"Domestic Lending Office" means, as to each Bank, its
office located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire
as its Domestic Lending Office) or such other office as such Bank
may hereafter designate as its Domestic Lending Office by notice
to the Company and the Agent.
"DTC" means The Depository Trust Company and its
successors and assigns in the capacity contemplated therefor with
respect to the Bonds pursuant to the Indenture.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, or any successor statute.
"Euro-Dollar Business Day" means any Domestic Business
Day on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
"Euro-Dollar Disbursement" means a Disbursement which,
pursuant to Section 2.06 or Section 2.12, bears interest at a
rate of interest on the basis of an Adjusted London Interbank
Offered Rate determined in accordance with Section 2.05(b).
"Euro-Dollar Lending Office" means, as to each Bank,
its office, branch or affiliate located at its address set forth
in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Dollar Lending Office)
or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Reserve Percentage" has the meaning set
forth in Section 2.05(b).
"Event of Default" has the meaning set forth in Section
7.01.
"Event of Termination" has the meaning set forth in
Section 7.02(b).
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted
to The Bank of New York on such day on such transactions as
determined by the Agent.
"Fitch" means Fitch Investors Service, L.P.
"Indenture" means the Indenture of Trust, dated as of
December 1, 1984, between the Issuer and the Trustee, as amended
or supplemented from time to time.
"Interest Disbursement" means a disbursement made by a
Bank of its Percentage Share of the portion, if any, of the
Purchase Price of Unremarketed Bonds purchased on any Purchase
Date that corresponds to the accrued and unpaid interest on such
Unremarketed Bonds at such date.
"Interest Payment Date" means the first day of each
month.
"Interest Period" means, with respect to each Euro-
Dollar Disbursement, a period commencing on the date specified in
the applicable Notice of Interest Rate Election and ending one,
two, three or six months thereafter, as the Company may elect in
the applicable Notice of Interest Rate Election; provided that:
(a) any Interest Period that would otherwise end on a
day that is not a Euro-Dollar Business Day shall be extended
to the next succeeding Euro-Dollar Business Day unless such
day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day; and
(b) any Interest Period that begins on the last Euro-
Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall,
subject to the provisions of paragraph (c) of this proviso,
end on the last Euro-Dollar Business Day of a calendar
month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, or any successor statute.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution, loan,
time deposit or otherwise.
"Issuer" means City of Rockport, Indiana.
"Moody's" means Moody's Investors Service.
"Moody's Rating" means the higher of the rating of (i)
the Company's first mortgage bonds or (ii) the Bond Insurer's
long-term debt or claims-paying ability most recently announced
by Moody's.
"Mortgage" means the Mortgage and Deed of Trust dated
as of June 1, 1939 between the Company and The Bank of New York,
as amended or supplemented from time to time.
"Notice of Interest Rate Election" has the meaning set
forth in Section 2.06.
"Offering Circular" means any offering circular or
other document (whether preliminary or final) used in connection
with the offering and sale or the re-offering and re-sale or
remarketing of the Bonds (including, without limitation, the
Preliminary Official Statement and the Official Statement).
"Official Statement" means the Official Statement,
dated , of the Issuer relating to the Bonds.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning assigned thereto in
Section 9.07(b).
"Percentage Share" means, with respect to any Bank, the
percentage of the Total Combined Available Commitments which is
represented by such Bank's Combined Available Commitment (which
percentage initially shall be set forth on the signature pages
attached hereto).
"Person" means an individual, a corporation, a
partnership, a limited liability company, an association, a trust
or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Preliminary Official Statement" means the Preliminary
Official Statement, dated , of the Issuer
relating to the Bonds.
"Prime Rate" means the rate of interest publicly
announced by The Bank of New York in New York City from time to
time as its prime commercial lending rate (which rate is a
reference rate and not necessarily the lowest rate of interest
charged by The Bank of New York to its prime customers).
"Principal Disbursement" means a disbursement made by a
Bank of its Percentage Share of the portion of the Purchase Price
of Unremarketed Bonds purchased on any Purchase Date that
corresponds to the principal of such Unremarketed Bonds.
"Prior Bonds" means the Adjustable Series 1985 A Bonds,
as defined in the Indenture.
"Purchase Certificate" has the meaning assigned to that
term in Section 4.03(a)(i).
"Purchase Contract" means the Underwriting Agreement,
dated , between the Issuer and the Underwriter.
"Purchase Date" means each date fixed for the purchase
of Bonds by the Banks in accordance with Section 4.03 of the
Sixth Supplement.
"Purchase Price" has the meaning assigned to that term
in Section 2.01.
"Reference Bank" means the principal London office of
The Bank of New York.
"Related Document" or "Related Documents" means,
individually or collectively, as the case may be, any or all of
the Bond Documents, the Bond Insurance Policy, the Remarketing
Agreement and the Purchase Contract.
"Remarketing Agent" means Goldman, Sachs & Co., as
Remarketing Agent for the Bonds, and any successor thereto
appointed in accordance herewith and with the Indenture and the
Remarketing Agreement.
"Remarketing Agreement" means the Remarketing
Agreement, dated as of , between the Company and the
Remarketing Agent, or any successor remarketing agreement entered
into in connection with the Bonds in accordance herewith and with
the Indenture.
"Required Banks" means Banks holding in the aggregate
66-2/3% or more of the aggregate principal amount of Unremarketed
Bonds or, if no Unremarketed Bonds are held by the Banks, Banks
whose Combined Available Commitments comprise 66-2/3% or more of
the Total Combined Available Commitments.
"S&P" means Standard & Poor's Ratings Group (a division
of McGraw Hill, Inc.).
"S&P Rating" means the higher of the rating of (i) the
Company's first mortgage bonds or (ii) the Bond Insurer's long-
term debt or claims-paying ability most recently announced by
S&P.
"Short-Term Debt" means, with respect to the Company
and its Consolidated Subsidiaries determined on a consolidated
basis, the principal amount of indebtedness for borrowed money
represented by a note or draft issued, renewed or guaranteed by
the Company or any such Subsidiary which has a maturity at the
time of issuance, renewal or guarantee of not more than twelve
months, exclusive of any applicable grace period.
"Significant Subsidiary" means, at any time, a
Subsidiary that would constitute a "significant subsidiary", as
such term is defined in Regulation S-X of the Securities and
Exchange Commission (17 CFR Part 210), at such time.
"Sixth Supplement" means the Sixth Supplemental
Indenture of Trust between the Issuer and the Trustee, dated as
of June 1, 1995.
"Stated Expiration Date" means June 28, 2000, or such
later date to which the Stated Expiration Date shall have been
extended pursuant to Section 2.10 (or if such day is not a
Domestic Business Day, the next succeeding Domestic Business
Day). For the avoidance of doubt, the Commitments and the
obligations of the Banks to purchase Unremarketed Bonds shall
automatically terminate without notice to any Person pursuant to
Section7.02(b) upontheoccurrenceofa BondInsurerEventofInsolvency.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by the Company.
"Term Period Commencement Date" means, with respect to
any Disbursement, the earlier of (i) the first anniversary of the
Purchase Date on which such Disbursement was made and (ii) the
Commitment Termination Date.
"Total Combined Available Commitments" means the sum of
the Combined Available Commitments of all of the Banks.
"Trustee" means Norwest Bank Indiana, N.A. (formerly
Lincoln National Bank and Trust Company of Fort Wayne) or any
successor trustee appointed in accordance with the Indenture.
"Underwriter" means Goldman, Sachs & Co. as the initial
purchaser of the Bonds under the Purchase Contract.
"United States" means the United States of America,
including the States and the District of Columbia, but excluding
its territories and possessions.
"Unremarketed Bonds" means Bonds which are tendered
and/or deemed tendered for purchase pursuant to the provisions of
the Indenture and which have not been remarketed by the
Remarketing Agent.
Section 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes
concurred in by the Company's independent public accountants)
with the most recent audited financial statements of the Company
and its Consolidated Subsidiaries delivered to the Banks;
provided that if the Company notifies the Agent that the Company
wishes to amend any covenant in Article VI to eliminate the
effect of any change in generally accepted accounting principles
on the operation of such covenant (or if the Agent notifies the
Company that the Required Banks wish to amend Article VI for such
purpose), then the Company's compliance with such covenant shall
be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in
generally accepted accounting principles became effective, until
either such notice is withdrawn or such covenant is amended in a
manner satisfactory to the Company and the Required Banks.
Section 1.03. Basis for Ratings. Except with respect
to the ratings assigned to the Bonds, the Company's first
mortgage bonds or the Insurer's claims-paying ability, references
herein to credit ratings are to ratings assigned to unsecured
obligations without third party credit support. Except as
aforesaid, ratings assigned to any obligation that is secured or
that has the benefit of third party credit support shall be
disregarded. For purposes hereof, the rating in effect on any
date is that in effect on the close of business on such date.
ARTICLE II.
TERMS OF THE COMMITMENT TO
PURCHASE UNREMARKETED BONDS
Section 2.01. Commitment of the Banks to Purchase
Unremarketed Bonds. Subject to the terms and conditions of this
Agreement (including, without limitation, the conditions
precedent set forth in Section 4.03), each Bank severally agrees
to purchase Unremarketed Bonds from time to time prior to the
Commitment Termination Date, not later than 3:00 P.M. (New York
City time) on each Purchase Date for such Unremarketed Bonds, at
a price (the "Purchase Price") equal to the principal amount
thereof plus (if the Purchase Date is not a day on which interest
is payable on such Unremarketed Bonds) accrued and unpaid
interest thereon to such Purchase Date; provided, however, that
the Purchase Price payable by each Bank on such Purchase Date
shall not exceed (a) with respect to the portion of such Purchase
Price corresponding to principal, the lesser of (i) the Available
Principal Commitment of such Bank as in effect on such Purchase
Date, or (ii) such Bank's Percentage Share of the aggregate
principal amount of Unremarketed Bonds being purchased by the
Banks on such Purchase Date, and (b) with respect to the portion
of such Purchase Price corresponding to interest, the lesser of
(i) the Available Interest Commitment of such Bank as in effect
on such Purchase Date, or (ii) such Bank's Percentage Share of
the aggregate amount of interest accrued and unpaid on such
Unremarketed Bonds on such Purchase Date; and provided further,
however, that the Company agrees that Unremarketed Bonds which
are held by or for the account of the Company, any affiliate of
the Company or any broker-dealer holding Unremarketed Bonds
pursuant to an arrangement with the Company shall not be
purchased by the Banks hereunder. The obligations of the Banks
to purchase Unremarketed Bonds pursuant to this Agreement are
several and not joint and several. No Bank shall be liable for
the failure of any other Bank to purchase Unremarketed Bonds
pursuant to this Agreement. The failure of any Bank to purchase
Unremarketed Bonds pursuant to this Agreement shall not excuse
the several obligations of the other Banks to purchase
Unremarketed Bonds pursuant to this Agreement. Each Bank agrees
that in no event shall amounts paid by it in respect of the
Purchase Price of Unremarketed Bonds be paid from funds or
property of the Company.
Section 2.02. Method of Purchase of Unremarketed
Bonds. In connection with each purchase by a Bank of
Unremarketed Bonds pursuant to this Agreement, such Bank will
wire transfer immediately available funds in the amount of the
Purchase Price to the Trustee. Any amount disbursed by the Banks
on a Purchase Date to pay the Purchase Price of Unremarketed
Bonds which is not used (or deemed used) for such purpose on such
Purchase Date shall be repaid to the Agent for the account of the
Banks (either (i) in proportion to their respective Percentage
Shares or (ii) as otherwise specified by the Agent in the event
any Bank shall not have disbursed in full the amount of such
Bank's Purchase Price) in immediately available funds and such
amount shall not be included as part of the Disbursements made by
the Banks on such date. If such amount is not repaid to the
Agent for the account of the Banks on such Purchase Date, the
Company shall pay, or cause to be paid, to the Agent for the
account of the Banks interest on such amount at the Base Rate for
each day until the Banks are repaid in full with respect to such
amount.
Section 2.03. Bank Bonds. (a) Upon a Bank having paid
to the Trustee its Percentage Share of the Purchase Price of
Unremarketed Bonds in accordance with the Purchase Certificate
relating thereto, such Bank shall be deemed to have purchased a
principal amount of the Unremarketed Bonds equal to such Bank's
Percentage Share of the aggregate principal amount of the
Unremarketed Bonds specified in such Purchase Certificate and
such Bonds shall be held for the proportionate benefit of the
Banks as provided in Section 4.03(b).
(b) Neither the Agent nor any Bank shall have any
responsibility for, or incur any liability in respect of, any
act, or any failure to act, by the Trustee which results in the
failure of the Trustee (i) to credit the appropriate account with
funds made available by any Bank pursuant to this Agreement or
(ii) to effect the purchase for the account of the Banks of
Unremarketed Bonds with such funds pursuant to this Agreement.
(c) Unremarketed Bonds purchased by the Banks pursuant
to Section 2.01 shall constitute Bank Bonds and shall bear
interest on the unpaid principal amount thereof, payable monthly
in arrears on each Interest Payment Date, at the Bank Rate until
such Bonds cease to be Bank Bonds in the manner and at the time
specified in Section 2.04.
(d) Payments in respect of principal (including
premium, if any) and interest received by the Agent in respect of
any Bank Bonds (whether at maturity, upon redemption or
acceleration, or otherwise, including payments made with the
proceeds of the Bond Insurance Policy and amounts received upon
the remarketing of such Bank Bonds or the sale thereof pursuant
to Section 6.07) shall be applied (and to the extent that the
Disbursements are not then due and payable, the Disbursements
shall be prepaid) as follows:
(i) Payments in respect of principal (including
premium, if any) shall be applied to the ratable repayment
(or prepayment) of the Principal Disbursements made by the
Banks to purchase the principal amount of such Bank Bonds.
(ii) Payments in respect of interest that was accrued
on such Bonds when they were purchased by the Banks shall be
applied to the ratable repayment (or prepayment) of the
Interest Disbursements made by the Banks with respect to
such accrued interest.
(iii) Payments in respect of interest that accrued at
the Bank Rate after such Bonds became Bank Bonds shall be
applied in the following order of priorities: first, to the
ratable payment of interest on the Disbursements that is due
and unpaid hereunder, second, to the payment of due and
unpaid fees payable to the Agent pursuant to Section 8.13 or
the Banks pursuant to Section 2.07 and third, to the Company
(or if such payment shall have been made by the Bond Insurer
pursuant to the Bond Insurance Policy, to the Bond Insurer).
(e) The Company shall receive a credit against its
obligation to make any payment hereunder if and to the extent
that amounts paid in respect of the Bank Bonds are applied to
such payment in accordance with Section 2.03(d), and such
obligation shall be discharged to such extent; provided that in
the event that all or part of any such amount is recovered from
any Bank as a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law, such obligation
shall be reinstated as though such amount had not been paid.
Section 2.04. Remarketing of Bank Bonds. No Bank
Bonds shall be remarketed after the Commitment Termination Date.
Without limiting the foregoing, upon receipt by the Agent of:
(i) telephonic notice given by the Remarketing Agent
pursuant to Section 4.03(b) of the Sixth Supplement of the
proposed remarketing of any Bank Bonds or notice by the
Company of the proposed purchase by it of any Bank Bonds
(which notices shall be promptly confirmed in writing and
shall state the principal amount of Bank Bonds to be
remarketed or purchased),
(ii) an amount equal to the sums required to be paid to
the Agent for the account of each Bank pursuant to Section
2.11 in respect of the repayment of each Disbursement (each
such Disbursement being referred to for purposes of this
Section 2.04 as a "Related Disbursement") made by the Banks
to pay the Purchase Price of such Bank Bonds (when such Bank
Bonds constituted Unremarketed Bonds), together with
interest thereon as provided in Section 2.11(c), and
(iii) in the event that any such Bank Bonds are being
remarketed or purchased on a date that is after the Term
Period Commencement Date with respect to the Related
Disbursement made with respect to such Bonds, (A) written
consent of the Banks with respect to the increase in
Available Principal Commitments and Available Interest
Commitments of the Banks described below and (B) a
certificate of the Company signed by an authorized officer
to the effect that on and as of such date, to the best of
such authorized officer's knowledge after due inquiry:
(x) the representations and warranties of the
Company contained in Article V are true and correct on
and as of such date as though made on such date;
(y) no Default has occurred and is continuing on
such date; and
(z) the Bonds are rated by any two of Moody's,
S&P and Fitch, and, if rated by such agency on such
date, are rated Aaa by Moody's, AAA by S&P and AAA by
Fitch,
then the Agent on behalf of each Bank shall promptly notify
the Trustee pursuant to Section 4.03(b)(v) of the Sixth
Supplement that (A) the Trustee may release, or cause to be
promptly released, such Bank Bonds for transfer in
connection with such remarketing or purchase and (B) upon
such release, such Bank Bonds shall cease to constitute Bank
Bonds and each Bank's Available Principal Commitment and
Available Interest Commitment shall be increased to cover
such released Bonds in accordance with the definitions of
such terms set forth in Section 1.01. For purposes of
determining which Bank Bonds have been remarketed or
purchased by the Company on any date, it shall be assumed
that the Bank Bonds purchased by the Banks on each of the
Purchase Dates that occurred prior to such date have been
remarketed or purchased by the Company on a pro rata basis
(determined by reference to the principal amount of such
Bank Bonds on such date), and Bank Bonds purchased by the
Banks on any such prior Purchase Date shall be released
pursuant to this Section 2.04 on the same basis (until all
Bank Bonds purchased by the Banks on such prior Purchase
Date have been so released).
Section 2.05. Interest Rates. (a) Each Domestic
Disbursement shall bear interest on the outstanding principal
amount thereof, for each day from the date such Disbursement is
made until such Disbursement is required to be repaid hereunder,
at a rate per annum equal to the Base Rate for such day. Such
interest shall be payable monthly in arrears on each Interest
Payment Date.
(b) Each Euro-Dollar Disbursement shall bear interest
on the outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per annum equal
to the sum of the Applicable Margin for such day plus the
Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable monthly in
arrears on each Interest Payment Date.
"Applicable Margin" means, with respect to any Euro-
Dollar Disbursement on any date, (a) for any date occurring prior
to the Term Period Commencement Date relating to such
Disbursement, (i) if the S&P Rating is not lower than A and the
Moody's Rating is not lower than A2, % per annum; (ii) if
the S&P Rating is lower than A or the Moody's Rating is lower
than A2, but the S&P Rating is not lower than BBB+ and the
Moody's Rating is not lower than Baa1, % per annum; (iii) if
the S&P Rating is lower than BBB+ or the Moody's Rating is lower
than Baa1, but the S&P Rating is not lower than BBB- and the
Moody's Rating is not lower than Baa3, % per annum; and (iv)
if the S&P Rating is lower than BBB- or the Moody's Rating is
lower than Baa3, % per annum; and (b) for any date occurring
on or after the Term Period Commencement Date relating to such
Disbursement, the rate per annum that would otherwise be
applicable pursuant to clause (a) above plus %.
The "Adjusted London Interbank Offered Rate" applicable
to any Interest Period means a rate per annum equal to the
quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
The "London Interbank Offered Rate" applicable to any
Interest Period means the rate per annum (rounded upward, if
necessary, to the next higher 1/16 of 1%) at which deposits in
dollars are offered to the Reference Bank in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days before the first day of such Interest Period in an
amount approximately equal to the principal amount of the Euro-
Dollar Disbursement of the Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such
Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect
of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Disbursements
is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any
Bank to United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve
Percentage.
(c) Any overdue principal of, or interest on, any
Disbursement and any other amount due hereunder which is not paid
when due, whether at stated maturity or otherwise, shall bear
interest, payable on demand, from the date the same becomes due
until such amount is paid in full, at a rate per annum equal to
the sum of 2% plus the Base Rate as in effect from time to time.
(d) The Agent shall determine each interest rate
applicable to the Disbursements hereunder. The Agent shall give
prompt notice to the Company and the Banks of each rate of
interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(e) The Reference Bank agrees to use its best efforts
to furnish quotations to the Agent as contemplated hereby. If
the Reference Bank does not furnish a timely quotation, the
provisions of Section 2.12 shall apply.
Section 2.06. Method of Electing Interest Rates. (a)
All Disbursements made by the Banks on any Purchase Date shall
initially be Domestic Disbursements. Thereafter, the Company may
from time to time elect to change or continue the type of
interest rate borne by each Disbursement Group (subject in each
case to the provisions of Section 2.12), as follows:
(i) if such Disbursements are Domestic Disbursements,
the Company may elect to convert such Disbursements to Euro-
Dollar Disbursements as of any Euro-Dollar Business Day; and
(ii) if such Disbursements are Euro-Dollar
Disbursements, the Company may elect to convert such
Disbursements to Domestic Disbursements or elect to continue
such Disbursements as Euro-Dollar Disbursements for an
additional Interest Period, in each case effective on the
last day of the then current Interest Period applicable to
such Disbursements.
Each such election shall be made by delivering a notice
substantially in the form of Exhibit B hereto (a "Notice of
Interest Rate Election") to the Agent, in the case of a
conversion to Domestic Disbursements, on or prior to the Domestic
Business Day of such conversion, and, in the case of conversion
to or continuation of Euro-Dollar Disbursements, at least three
Euro-Dollar Business Days, before the conversion or continuation
selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Disbursement
Group; provided that (i) such portion is allocated ratably among
the Disbursements comprising such Disbursement Group and (ii) the
portion to which such Notice of Interest Rate Election applies,
and the remaining portion to which it does not apply, are each at
least $3,000,000.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Disbursement Group (or portion thereof) to
which such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall
comply with the applicable clause of subsection (a) above;
(iii) if the Disbursements comprising such Disbursement
Group are to be converted, the new type of Disbursements
(i.e. Domestic or Euro-Dollar) and, if such new
Disbursements are Euro-Dollar Disbursements, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Disbursements are to be continued as Euro-
Dollar Disbursements for an additional Interest Period, the
duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition of
Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election
from the Company pursuant to subsection (a) above, the Agent
shall promptly notify each Bank of the contents thereof and such
notice shall not thereafter be revocable by the Company. If the
Company fails to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Euro-Dollar Disbursements,
such Disbursements shall be converted into Domestic Disbursements
on the last day of the then current Interest Period applicable
thereto.
(d) Notwithstanding anything herein to the contrary,
(i) the Company may not elect to convert a Domestic Disbursement
to a Eurodollar Disbursement or continue a Eurodollar
Disbursement as a Eurodollar Disbursement at any time that a
Default shall have occurred and be continuing, and (ii) the
Company shall convert and continue Disbursements in a manner such
that no payment of Euro-Dollar Disbursements will have to be made
prior to the last day of an applicable Interest Period in order
to repay the Disbursements in the amounts and on the dates
specified in Section 2.11(a).
Section 2.07. Fees.
(a) Commitment Fee. The Company shall pay to the
Agent for the account of the Banks ratably (in proportion to
their Percentage Shares) a commitment fee at a per annum rate for
each day equal to the Commitment Fee Rate for such day on the
Total Combined Available Commitments at the close of business on
such day. Such commitment fee shall accrue from and including
the Closing Date to but excluding the Commitment Termination Date
(or earlier date of termination of the Total Combined Available
Commitments in their entirety).
"Commitment Fee Rate" means, for any day, (i) if the
S&P Rating is not lower than A and the Moody's Rating is not
lower than A2, % per annum; (ii) if the S&P Rating is lower
than A or the Moody's Rating is lower than A2, but the S&P Rating
is not lower than BBB+ and the Moody's Rating is not lower than
Baa1, % per annum; (iii) if the S&P Rating is lower than
BBB+ or the Moody's Rating is lower than Baa1, but the S&P Rating
is not lower than BBB- and the Moody's Rating is not lower than
Baa3, % per annum; and (iv) if the S&PRating is lowerthan BBB-
or the Moody's Rating is lower than Baa3, % per annum, in
each case on such day.
(b) Payments. Fees accrued under this Section shall
be payable quarterly in arrears on each March 31, June 30,
September 30 and December 31 (commencing with September 30,
1995). If the Total Combined Available Commitments are reduced
pursuant to Section 2.08 or terminated in their entirety pursuant
to Section 2.09, all fees accrued under this Section to but
excluding the effective date of such reduction or termination and
with respect to the Total Combined Available Commitments (or
portion thereof) being reduced or terminated shall be payable on
such date.
Section 2.08. Reduction of Commitment.
(a) In connection with a redemption, a purchase and
cancellation, a defeasance, or any other retirement of any of the
Bonds, the Trustee shall have the right, on behalf of the
Company, permanently and irrevocably to reduce (including,
without limitation, a reduction to zero), the Available Principal
Commitment of each Bank by an amount equal to such Bank's
Percentage Share of the principal amount of Bonds so redeemed,
purchased and canceled, defeased, or otherwise retired, by giving
to the Agent written notice of such reduction (which notice shall
state the amount of such reduction and the date or dates of such
redemption, purchase and cancellation, defeasance, or other
retirement). Upon any such reduction described in this Section
2.08(a), the Available Interest Commitment of each Bank shall be
reduced in accordance with the definition of such term set forth
in Section 1.01. The Agent shall notify each Bank promptly of
any reduction in the Commitments of the Banks pursuant to this
Section 2.08(a).
(b) In connection with the purchase by a Bank of
Unremarketed Bonds pursuant to this Agreement, the Available
Principal Commitment of such Bank shall be automatically reduced
by an amount equal to the principal amount of Unremarketed Bonds
that are so purchased by such Bank (subject to reinstatement in
the event of the release by such Bank of the related Bank Bonds
pursuant to Section 2.04). Upon any such reduction (or
reinstatement), the Available Interest Commitment of such Bank
shall be reduced (or reinstated), in accordance with the
definition of such term set forth in Section 1.01.
Section 2.09. Termination of Commitment.
(a) Each Bank's commitment to purchase Unremarketed
Bonds pursuant to the terms of this Agreement shall terminate at
5:00 P.M. (New York City time) on the earliest to occur of the
following dates (the "Commitment Termination Date"): (i) the
Stated Expiration Date, (ii) the date on which the Available
Principal Commitment of such Bank is permanently and irrevocably
reduced to zero in accordance with this Agreement upon the
redemption, purchase and cancellation, defeasance or other
retirement of all of the Bonds, (iii) the date on which, in
accordance with the Indenture and Section 6.07, a substitute
liquidity facility is substituted for the commitments of the
Banks to purchase Unremarketed Bonds pursuant to this Agreement
or (iv) the date on which an Event of Termination occurs.
(b) The Company shall have the right to terminate the
commitments of all (but not less than all) of the Banks to
purchase Unremarketed Bonds pursuant to this Agreement, at any
time upon five days' written notice to the Agent, the Bond
Insurer, the Trustee and the Remarketing Agent; provided,
however, that in connection with any such termination the Company
shall pay to the Agent and the Banks any and all amounts due and
owing to the Agent and the Banks under this Agreement and there
shall be purchased from the Banks all Bank Bonds, together with
accrued interest.
Section 2.10. Extensions of Stated Expiration Date.
The Stated Expiration Date may be extended, in the manner set
forth in this Section 2.10, on June 28, 1998 and on each
anniversary of such date (an "Extension Date") for a period of
one year after the date on which the Stated Expiration Date would
otherwise have occurred. If the Company wishes to request an
extension of the Stated Expiration Date on any Extension Date, it
shall give written notice to that effect to the Agent not less
than 30 nor more than 45 days prior to such Extension Date,
whereupon the Agent shall notify each of the Banks of such
notice. Each Bank will use its best efforts to respond to such
request, whether affirmatively or negatively, within 30 days. If
all Banks respond affirmatively, then, subject to receipt by the
Agent prior to such Extension Date of counterparts of an
Extension Agreement in substantially the form of Exhibit C hereto
duly completed and signed by all of the parties hereto, the
Stated Expiration Date shall be extended, effective on such
Extension Date, for a period of one year to the date stated in
such Extension Agreement.
Section 2.11. Repayment and Prepayment of
Disbursements. (a) Scheduled Repayments. (i) Interest
Disbursements. The Company shall pay in full the Interest
Disbursements made on any Purchase Date with respect to accrued
interest on Unremarketed Bonds on the first Interest Payment Date
following such Purchase Date.
(ii) Principal Disbursements. The Company shall repay
each Principal Disbursement in ten equal consecutive semi-
annual installments payable commencing on the date falling
six months after the Term Period Commencement Date with
respect to such Principal Disbursement. If any Bank Bonds
are remarketed or purchased and released pursuant to Section
2.04 on a date that is on or after the Term Period
Commencement Date with respect to the Principal Disbursement
made by the Banks to purchase such Bank Bonds, the then
remaining installments to be made pursuant to this Section
2.11(a)(ii) with respect to such Principal Disbursement
(including any installment due on such date) shall be
ratably reduced by an aggregate amount equal to the amount
by which such Principal Disbursement was prepaid on such
date pursuant to Section 2.11(b).
(b) Mandatory Prepayments. On each date, if any, that
Bank Bonds are required to be redeemed pursuant to Section
3.03(b) of the Sixth Supplement, the Disbursements and all
interest accrued thereon shall be prepaid in full. Without
limiting the foregoing, on each date that any amount is paid in
respect of any Bank Bonds, whether upon redemption or
acceleration or otherwise, including any amount paid upon the
remarketing of such Bank Bonds or the sale thereof in accordance
with Section 6.07, the Disbursements shall be prepaid as and to
the extent required by Section 2.03(d).
(c) Ratable Application. Each repayment or prepayment
of Disbursements pursuant to this Section 2.11 shall be made
together with all unpaid interest accrued thereon pursuant to
Section 2.05 to but excluding the date of payment and shall be
applied ratably to the Disbursements of the Banks being repaid or
prepaid in proportion to their respective shares.
Section 2.12. Changes in Circumstances. (a) Basis
for Determining Interest Rate Inadequate or Unfair. If prior to
the first day of any Interest Period for any Group of Euro-Dollar
Disbursements:
(i) the Agent is advised by the Reference Bank that
deposits in dollars (in the applicable amounts) are not
being offered to the Reference Bank in the London interbank
market for such Interest Period, or
(ii) Banks having 60% or more of the Total Combined
Available Commitments advise the Agent that the Adjusted
London Interbank Offered Rate as determined by the Agent
will not adequately and fairly reflect the cost to such
Banks of funding their Euro-Dollar Disbursements for such
Interest Period,
the Agent shall forthwith give notice thereof to the Company and
the Banks, whereupon until the Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks to make or continue Euro-Dollar
Disbursements or to convert outstanding Domestic Disbursements
into Euro-Dollar Disbursements shall be suspended and each
outstanding Euro-Dollar Disbursement shall be converted into a
Domestic Disbursement on the last day of the then current
Interest Period applicable thereto.
(b) Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or
regulation, 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 its Euro-Dollar Lending Office)
with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency,
shall make it unlawful or impossible for any Bank (or its Euro-
Dollar Lending Office) to make, maintain or fund its Euro-Dollar
Disbursements and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks and the
Company, whereupon until such Bank notifies the Company and the
Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make or continue
Euro-Dollar Disbursements or to convert outstanding Domestic
Disbursements into Euro-Dollar Disbursements shall be suspended.
Before giving any notice to the Agent pursuant to this Section,
such Bank shall designate a different Euro-Dollar Lending Office
if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each
Euro-Dollar Disbursement of such Bank then outstanding shall be
converted to a Domestic Disbursement either (i) on the last day
of the then current Interest Period applicable to such Euro-
Dollar Disbursement if such Bank may lawfully continue to
maintain and fund such Disbursement as a Euro-Dollar Disbursement
to such day or (ii) immediately if such Bank shall determine that
it may not lawfully continue to maintain and fund such
Disbursement as a Euro-Dollar Disbursement to such day.
(c) Domestic Disbursements Substituted for Affected
Euro-Dollar Disbursements. If (i) the obligation of any Bank to
make or maintain Euro-Dollar Disbursements has been suspended
pursuant to Section 2.12(b) or (ii) any Bank has demanded
compensation under Section 3.01 with respect to its Euro-Dollar
Disbursements and the Company shall, by at least three Euro-
Dollar Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or
demand for compensation no longer apply:
(x) all Disbursements which would otherwise be made by
such Bank as (or continued as or converted into) Euro-Dollar
Disbursements shall instead be Domestic Disbursements (on
which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Disbursements
of the other Banks), and
(y) after each of its Euro-Dollar Disbursements has
been repaid, all payments of principal which would otherwise
be applied to repay such Euro-Dollar Disbursements shall be
applied to repay its Domestic Disbursements instead.
If such Bank notifies the Company that the circumstances giving
rise to such notice no longer apply, the principal amount of each
such Domestic Disbursement shall be converted into a Euro-Dollar
Disbursement on the first day of the next succeeding Interest
Period applicable to the related Euro-Dollar Disbursements of the
other Banks. The provisions of this Section 2.12(c) shall not
prejudice the right of such Bank to receive compensation pursuant
to Section 3.01 in accordance with the terms thereof.
ARTICLE III.
OBLIGATIONS OF COMPANY
Section 3.01. Increased Costs. If on or after the
date hereof the adoption of any applicable law, rule or
regulation, 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 its Applicable Lending Office) with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its
Disbursements or its obligation to make, continue or convert
Disbursements, or shall change the basis of taxation of
payments to any Bank (or its Applicable Lending Office) of
the principal of or interest on its Disbursements or any
other amounts due under this Agreement in respect of its
Disbursements or its obligation to make, continue or convert
into Disbursements (except for changes in the rate of tax on
the overall net income of such Bank or its Applicable
Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Applicable Lending
Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve
System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets
of, deposits with or for the account of, or credit extended
by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or on
the London interbank market any other condition affecting
its Disbursements or its obligation to make, continue or
convert into Disbursements;
and the result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Disbursements, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement, by an amount deemed by such Bank to
be material, then, within [30] days after demand by such Bank
(with a copy to the Agent), the Company shall pay to such Bank
such additional amount or amounts as will compensate such Bank
for such increased cost or reduction. Each Bank will promptly
notify the Company and the Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation for itself or any of its Participants
under this Section and setting forth in reasonable detail the
additional amount or amounts to be paid to it hereunder, which
shall be based on such estimates, assumptions, allocations and
the like that such Bank or such Participant, as the case may be,
shall in good faith determine to be appropriate, shall be
conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and
attribution methods.
Section 3.02. Capital Adequacy. If any Bank shall
have determined that, after the date hereof, the adoption 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 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 capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below
that which such Bank (or its Parent) could have achieved but for
such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to
time, within [30] days after demand by such Bank (with a copy to
the Agent), the Company shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent)
for such reduction. Each Bank will promptly notify the Company
and the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming
compensation for itself or any of its Participants under this
Section and setting forth in reasonable detail the additional
amount or amounts to be paid to it hereunder, which shall be
based on such estimates, assumptions, allocations and the like
that such Bank or such Participant, as the case may be, shall in
good faith determine to be appropriate, shall be conclusive in
the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
Section 3.03. Withholding Tax Exemption. No later
than 30 days following the date hereof, each Bank that is not
incorporated under the laws of the United States of America or a
state thereof agrees that it will deliver to each of the Company
and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that
such Bank is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal
income taxes. Each Bank which so delivers a Form 1001 or 4224
further undertakes to deliver to each of the Company and the
Agent two additional copies of such form (or a successor form) on
or before the date that such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by
the Company or the Agent, in each case certifying that such Bank
is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Bank from
duly completing and delivering any such form with respect to it
and such Bank advises the Company and the Agent that it is not
capable of receiving payments without any deduction or
withholding of United States federal income tax.
Section 3.04. Payments. The Company shall make, or
cause to be made, each payment of principal of, and interest on,
the Disbursements and of fees hereunder and of principal and
interest on Bank Bonds, not later than 1:00 p.m. (New York City
time) on the date when due, in Federal or other funds immediately
available in New York City, to the Agent at its address referred
to in Section 9.02. Any payment by the Company received by the
Agent after 1:00 p.m. (New York City time) shall be deemed to be
received on the following Domestic Business Day. As between the
Company and the Banks, payments required by this Agreement and
made by the Company to the Agent in accordance with this Section
3.04 shall be deemed to have been made to the Banks when received
by the Agent in immediately available funds and shall satisfy the
Company's obligations with respect to such payments to the extent
of the amounts so received.
Section 3.05. Computation of Interest and Fees.
Interest based on the Prime Rate or the Bank Rate shall be
computed on the basis of a year of 365 days (or 366 days in a
leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including
the first day but excluding the last day).
Section 3.06. Payment on Non-Business Days. Whenever
any payment of principal of, or interest on, any Disbursements or
of fees shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
Section 3.07. Funding Losses. If any payment of
principal with respect to any Euro-Dollar Disbursement is made or
any Euro-Dollar Disbursement is converted to a Domestic
Disbursement (pursuant to Section 2.11, 2.12(b) or 6.07, or
otherwise) on any day other than the last day of the Interest
Period applicable thereto, the Company shall reimburse each Bank
within 15 days after demand for any resulting loss or expense
incurred by it (or by an existing or prospective Participant in
the related Disbursement), including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period
after any such payment or conversion; provided that such Bank
shall have delivered to the Company a certificate on behalf of
itself or any of its Participants setting forth in reasonable
detail the amount of such loss or expense, which shall be based
on such estimates, assumptions, allocations and the like that
such Bank or such Participant, as the case may be, shall in good
faith determine to be appropriate, which certificate shall be
conclusive in the absence of manifest error.
Section 3.08. Replacement of Banks and Participants.
If any Bank or any Participant shall request compensation
pursuant to Section 3.01 or 3.02, the Company, upon five Domestic
Business Days' notice, may require that, (a) in the case of a
Bank, such Bank transfer all of its right, title and interest
under this Agreement to any bank identified by the Company and
satisfactory to the Agent and such Bank and (b) in the case of a
Participant, such Participant transfer all of its right, title
and interest under the participation agreement with respect to
this Agreement to which it is a party, to any bank identified by
the Company and satisfactory to the Agent and such Participant if
(i) such proposed transferee agrees to assume (A) in the case of
a transferor that is a Bank, all of the obligations of such Bank
for consideration equal to the outstanding amount of such Bank's
Disbursements, together with interest thereon to the date of such
transfer, and satisfactory arrangements are made for the payment
to such Bank of all other amounts payable hereunder to such Bank
on or prior to the date of such transfer (including any fees
accrued hereunder, any amounts payable under Sections 3.01 and
3.02 and any amounts which would be payable under Section 3.07 as
if all of such Bank's Disbursements were being prepaid in full on
such date) and (B) in the case of a transferor that is a
Participant, all of the obligations of such Participant under the
participation agreement with respect to this Agreement to which
it is a party for consideration equal to the amount of such
Participant's participations in Disbursements then outstanding
and interest accrued thereon to the date of such transfer, and
satisfactory arrangements are made for the payment to such
Participant of all other amounts payable hereunder or otherwise
with respect to such participation on or prior to the date of
such transfer (including any amounts payable under Sections 3.01
and 3.02 and any amounts which would be payable under Section
3.07 as if all of such Participant's participations in
Disbursements were being prepaid on such date), (ii) such
proposed transferee's aggregate requested compensation, if any,
pursuant to Section 3.01 or 3.02 with respect to such replaced
Bank's Disbursements or such Participant's participation in
Disbursements, as the case may be, is lower than that of the Bank
or the Participant, as the case may be, replaced and (iii) the
Company shall have paid to the Agent, in connection with each
such transfer by a Bank or a Participant, an administrative fee
of $2,500 for processing such transfer. Without prejudice to the
survival of any other agreement of the Company hereunder, the
agreements of the Company contained in Sections 3.01, 3.02, and
9.04 shall survive for the benefit of any Bank or any Participant
replaced under this Section 3.08 with respect to the time prior
to such replacement.
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent Subject to
Fulfillment on the Closing Date. The obligation of each Bank to
purchase Unremarketed Bonds pursuant to this Agreement is subject
to the condition precedent that the Agent shall have received on
or before the Closing Date the following, each in form and
substance satisfactory to the Agent, each Bank and counsel for
the Agent:
(a) This Agreement, duly executed on behalf of the
Company.
(b) (i) Counterparts (or certified copies thereof) of
each of the Related Documents (other than the Bonds) which,
when taken together, bear the signatures of all of the
respective parties thereto and which are in full force and
effect in accordance with their respective terms and are
satisfactory to the Agent in form and substance and (ii) a
specimen of a Bond.
(c) Copies of the Official Statement and the
Preliminary Official Statement.
(d) A certificate of an authorized officer, certifying
the names and true signatures of the officers of the Company
authorized to execute on behalf of the Company this
Agreement and the Related Documents to which the Company is
a party.
(e) Evidence that all necessary action required to be
taken by (i) the Issuer (including, without limitation, the
adoption or enactment by the Issuer of all necessary
resolutions and ordinances) and (ii) any governmental or
utility regulatory authority, including the Indiana Utility
Regulatory Commission, the Michigan Public Service
Commission and the Securities and Exchange Commission, in
connection with the authorization, execution, issuance,
delivery and performance of this Agreement and the Related
Documents, and any other document or instrument required to
be delivered pursuant hereto or thereto or in connection
with the transactions contemplated hereby or thereby, has
been taken.
(f) Evidence that, upon issuance, the Bonds will
receive credit ratings from any two of Moody's, S&P and
Fitch, and that the Bonds shall be rated, if rated by such
agency, Aaa from Moody's, AAA from S&P and AAA from Fitch.
(g) A copy of the Bond Insurance Policy which shall
provide that it insures all principal of and interest (at a
rate per annum not in excess of 18% per annum) on the Bonds
(including interest on Bank Bonds at the Bank Rate),
executed by the Bond Insurer, together with evidence
satisfactory to the Agent that the Bond Insurance Policy is
in full force and effect and is non-cancellable and that all
premiums required to be paid thereunder have been paid in
full.
(h) Legal opinions of (i) Baker & Daniels, as bond
counsel, (ii) Simpson Thacher & Bartlett, counsel for the
Company, (iii) counsel to the Bond Insurer satisfactory to
the Agent, and (iv) Winthrop, Stimson, Putnam & Roberts,
counsel to the Agent, in each case, as to such matters
incident to this Agreement, the Related Documents and the
transactions contemplated hereby and thereby as the Agent or
any of the Banks shall have reasonably requested.
(i) Evidence of the power and authority of the Trustee
to accept and execute its responsibilities under the
Indenture.
(j) An executed copy of each document, instrument,
certificate and opinion delivered pursuant to the Indenture
and the Purchase Contract (together with, in the case of
each such opinion (other than the opinion of counsel to the
Underwriter), a letter from the counsel rendering such
opinion to the effect that the Banks are entitled to rely on
such opinion as if it were addressed to them).
(k) Such other documents, instruments, opinions and
approvals (and, if requested by the Agent or any Bank,
certified duplicates or executed copies thereof) as the
Agent or any Bank shall have reasonably requested.
Section 4.02. Additional Conditions Precedent Subject
to Fulfillment on the Closing Date. The obligation of each Bank
to purchase Unremarketed Bonds pursuant to this Agreement is
subject to the further conditions precedent that on the Closing
Date:
(a) The following statements shall be true and shall
be deemed to have been represented by the Company as being
true on and as of the Closing Date, and the Agent shall have
received (with a copy for each Bank) a certificate of the
Company signed by an authorized officer dated the Closing
Date, stating that, to the best of such authorized officer's
knowledge after due inquiry:
(i) The representations and warranties of the
Company contained in Article V are true and correct on
and as of the Closing Date as though made on and as of
the Closing Date; and
(ii) No event has occurred and is continuing, or
would result from the effectiveness of this Agreement,
which constitutes a Default.
(b) The Agent shall have received payment in full of
all fees and other sums required to be paid to or for the
account of the Agent or the Banks on or prior to the Closing
Date.
(c) All conditions precedent to (i) the issuance of
the Bonds set forth in the Indenture, (ii) the issuance of
the Bond Insurance Policy by the Bond Insurer and (iii) the
purchase of the Bonds by the Underwriter under the Purchase
Contract (other than delivery of this Agreement) shall have
been satisfied without waiver.
Section 4.03. Conditions Subject to Fulfillment on
Each Purchase Date.
(a) The obligation of each Bank to purchase
Unremarketed Bonds pursuant to this Agreement on each Purchase
Date shall be subject to the fulfillment of the following
conditions precedent on and as of such Purchase Date:
(i) There shall have been presented to the Agent (by
physical delivery or telecopy), at the Agent's address for
notices specified in or pursuant to Section 9.02, not later
than 1:00 P.M. (New York City time) on such Purchase Date, a
written and completed certificate, substantially in the form
of Exhibit A hereto (a "Purchase Certificate"), signed by a
person purporting to be a duly authorized officer of the
Trustee, which (among other things) notifies the Agent of
the aggregate principal amount of Unremarketed Bonds which
the Trustee is demanding the Banks to purchase on such
Purchase Date.
(ii) The Unremarketed Bonds to be so purchased are not
held by or for the account of the Company, any affiliate of
the Company or any broker-dealer holding Unremarketed Bonds
pursuant to an arrangement with the Company.
(iii) No Event of Default specified in any of Sections
7.01(g) through (m), inclusive, shall have occurred and be
continuing.
(iv) The amount being demanded for payment by the Banks
under Section 2.01 does not exceed the Total Combined
Available Commitments on such Purchase Date (prior to giving
effect to such payment).
(v) The Commitment Termination Date shall not have
occurred.
The Banks shall be obligated to purchase Unremarketed Bonds with
respect to which the condition set forth in clause (ii) has been
satisfied notwithstanding the fact that such condition has not
been satisfied with respect to all of the outstanding
Unremarketed Bonds.
(b) If a demand for payment is made by the Trustee
pursuant to and in accordance with Section 4.03(a)(i) on a
Purchase Date occurring on or prior to the Commitment Termination
Date, and provided the conditions precedent to the purchase by
the Banks of Unremarketed Bonds under this Agreement have been
fulfilled and the documents presented in connection with such
demand for payment conform to the terms and conditions of this
Agreement, payment of the Purchase Price shall be made by the
Banks subject to and in accordance with Sections 2.01 and 2.02;
and, upon making payment for such Unremarketed Bonds in
accordance with the Purchase Certificate such Unremarketed Bonds
shall constitute Bank Bonds and (i) if the Bonds are issued and
maintained in book-entry form only pursuant to Section 2.12 of
the Sixth Supplement, the ownership interest in such Bonds shall
be transferred on the books of DTC to or for the account of the
Trustee, or a DTC participant acting on behalf of the Trustee
(reflecting the Trustee or such participant as the owner of such
Bank Bonds) and the Trustee (and such participant) shall mark its
own books and records to reflect beneficial ownership of such
Bank Bonds by the Agent (or the Agent's nominee or as the Agent
may otherwise direct) for the benefit of the Banks, or (ii) if
the Bonds are not maintained in book-entry form pursuant to
Section 2.12 of the Sixth Supplement, the Trustee shall register
such Bank Bonds in the name of the Agent (or the Agent's nominee
or as the Agent may otherwise direct) for the benefit of the
Banks on the registration books of the Issuer maintained by the
Trustee.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties. The
Company represents and warrants that:
(a) The Company and each Significant Subsidiary are
corporations duly incorporated, validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation.
(b) The execution, delivery and performance by the
Company of this Agreement and the Related Documents to which
the Company is a party are within the Company's corporate
powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the charter or by-laws of
the Company or any Significant Subsidiary or (ii) any law,
judgment or order or any contractual restriction binding on
or affecting the Company or any Significant Subsidiary.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Company of this Agreement
and the Related Documents to which the Company is a party,
except for the authorizations of the Indiana Utility
Regulatory Commission, the Michigan Public Service
Commission and the Securities and Exchange Commission, which
authorizations have been duly obtained and are in full force
and effect.
(d) This Agreement, and each of the Related Documents
to which the Company is a party, is the legal, valid and
binding obligation of the Company, enforceable against the
Company in accordance with their respective terms, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, or other similar laws affecting the enforcement
of creditors' rights in general, and except as the
availability of the remedy of specific performance is
subject to general principles of equity (regardless of
whether such remedy is sought in a proceeding in equity or
at law).
(e) The consolidated balance sheet of the Company and
its Consolidated Subsidiaries as at December 31, 1994, and
the related consolidated statements of income and retained
earnings of the Company and its Consolidated Subsidiaries
for the year then ended and the unaudited consolidated
balance sheet of the Company and its Consolidated
Subsidiaries as of March 31, 1995 and the related
consolidated statements of income and cash flows for the
three month period then ended (the "Financial Statements"),
copies of which have been furnished to each of the Banks,
fairly present the financial condition of the Company and
its Consolidated Subsidiaries as of such dates and the
results of the operations of the Company and its
Consolidated Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting
principles consistently applied, and since December 31,
1994, there has been no material adverse change in such
condition or operations or in the business prospects of the
Company and its Consolidated Subsidiaries.
(f) There is no pending or threatened action or
proceeding affecting the Company or any of its Significant
Subsidiaries, except as otherwise disclosed in the Financial
Statements or otherwise reported to each of the Banks prior
to the Closing Date, before any court, governmental agency
or arbitrator, which may materially adversely affect the
financial condition, operations or business prospects of the
Company and its Consolidated Subsidiaries or which in any
manner draws into question the validity or enforceability of
this Agreement or any of the Related Documents.
(g) None of the proceeds of any Disbursement will be
used for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), or for the purpose
of extending credit to others for the purpose of purchasing
or carrying any margin stock.
(h) Neither this Agreement nor any of the Related
Documents to which the Company is a party, or other written
material furnished to the Agent on behalf of or by the
Company in connection with this Agreement, contains any
untrue statement of a material fact or omits a material fact
necessary to make the information contained therein not
misleading. The Company does not know of any fact (other
than matters of a general economic or political nature) that
materially adversely affects, [or could reasonably be
expected to materially adversely affect,] the properties,
business or condition (financial or otherwise) of the
Company and its Consolidated Subsidiaries taken as a whole
or the ability of the Company to make and perform this
Agreement and the Related Documents to which it is a party,
except as otherwise disclosed in the Financial Statements
and in the Company's report on Form 10-K for the year ended
December 31, 1994, and the Company's report on Form 10-Q for
the quarter ended March 31, 1995.
(i) The Company and each of the Consolidated
Subsidiaries have filed or caused to be filed all tax
returns which are required to be filed, and has paid or
caused to be paid all taxes as shown on said returns and all
assessments received by any of them to the extent that such
taxes and assessments have become due, except for taxes and
assessments which are being contested in good faith and by
appropriate proceedings and as to which it has provided
reserves which are adequate in accordance with generally
accepted accounting principles.
[(j) No accumulated funding deficiency (as defined in
Section 3.02 of ERISA and Section 412 of the Internal
Revenue Code of 1986, as amended), whether or not waived,
exists with respect to any plan (other than a multiemployer
plan). The Company has not incurred and presently does not
expect to incur any withdrawal liability under Title IV of
ERISA with respect to any multiemployer plan which is or
would be materially adverse to the Company and its
Consolidated Subsidiaries taken as a whole. As used herein,
the term "plan" shall mean an "employee pension benefit
plan" (as defined in Section 3 of ERISA) which is and has
been established or maintained, or to which contributions
are or have been made, by the Company or by any trade or
business, whether or not incorporated, which together with
the Company is under common control as described in Section
414(b) or (c) of the Internal Revenue Code of 1986, and the
term "multiemployer plan" shall mean any plan which is a
"multiemployer plan" (as such term is defined in Section
4001(a)(3) of ERISA).]
(k) The Company and each of its Significant
Subsidiaries have and will maintain, with respect to their
respective properties, assets and businesses, insurance with
financially sound and reputable insurers against loss or
damage of the kinds and in the amounts customarily carried
under similar circumstances by other corporations engaged in
the same or similar businesses and similarly situated.
Notwithstanding the foregoing, the Company or any of such
Significant Subsidiaries may self-insure by deductible
provisions in a prudent amount with respect to each loss.
Section 5.02. Representations in Related Documents
True and Correct. Each of the representations and warranties
made by the Company in the Related Documents is true and correct
as of the Closing Date, except that any such representations and
warranties that expressly speak as of a particular date were true
and correct as of such date. The Related Documents have not as
of the Closing Date been modified or amended in any respect and
no provision or condition contained therein has been waived,
except with the express written consent of the Required Banks (to
the extent such consent is required by the terms hereof).
ARTICLE VI.
COVENANTS
So long as any Bank has any commitment hereunder or the
Company shall have any obligation to pay any amount hereunder or
any Bank Bond remains unpaid:
Section 6.01. Performance of This and Other
Agreements. The Company will punctually pay or cause to be paid
when due all amounts payable by it under this Agreement, the
Indenture and the other Related Documents and observe and perform
all of the conditions, covenants and requirements of this
Agreement, the Indenture and the other Related Documents
applicable to it.
Section 6.02. Further Assurances. The Company will
execute, acknowledge where appropriate, and deliver or file, and
cause to be executed, acknowledged where appropriate, and
delivered or filed, from time to time promptly at the request of
the Agent, all such instruments and documents as in the opinion
of the Agent are necessary or advisable to carry out the intent
and purpose of this Agreement, the Indenture, the Agreement of
Sale and the other Related Documents.
Section 6.03. Maintenance of Trustee and Agents. The
Company will maintain in place a Trustee and a Remarketing Agent
in accordance with the provisions of the Indenture.
Section 6.04. Amendments. Without the prior written
approval of the Required Banks (which approval shall not be
unreasonably withheld), the Company will not modify, amend or
supplement, or give any consent to any modification, amendment or
supplement or make any waiver with respect to, any provision of
any Related Document if, in the sole judgment of the Required
Banks, the effect thereof would be adverse to the Banks (it being
understood that, in order to effectuate the provisions of this
Section 6.04, the Company will furnish to the Agent and the Banks
copies of all proposed modifications, amendments, supplements and
waivers of or with respect to the Related Documents).
Notwithstanding any other provision of this Agreement
or any Related Document to the contrary, the Company shall not,
without the prior written consent of all of the Banks, modify,
amend or supplement, or give any consent to any modification,
amendment or supplement of, or seek or give any waiver with
respect to, any provision of any Related Document, or take any
other action under any Related Document, if the effect thereof
would be to (i) reduce the principal of or rate of interest on
any Bank Bonds; (ii) postpone the date fixed for payment of
principal of or interest on any Bank Bond, including, without
limitation, any date for the redemption of all or any portion
thereof pursuant to Section 3.03(b) of the Sixth Supplement;
(iii) amend, modify, supplement or waive any provision of the
Bond Insurance Policy; or (iv) waive an "Insurer Default" under
and as defined in the Indenture or substitute any other insurance
or indemnity company or other financial institution for AMBAC
Indemnity Corporation as "Bond Insurer" or as an obligor on or
with respect to the Bond Insurance Policy.
Notwithstanding the foregoing, the Company shall not,
without the prior written consent of the Agent, modify, amend or
supplement, or give any consent to any modification, amendment or
supplement of, or seek or give any waiver with respect to, any
provision of any Related Document if the rights or duties of the
Agent are affected thereby.
Section 6.05. Offering Circular. The Company will not
include, or permit to be included, any material or reference
relating to any Bank in any Offering Circular (excluding the
Preliminary Official Statement and the Official Statement) or any
tombstone advertisement, unless such material or reference is
approved in writing by such Bank prior to its inclusion therein;
or distribute, or permit to be distributed or used, any Offering
Circular unless copies of such Offering Circular are furnished to
the Agent and the Banks.
Section 6.06. Remarketing. The Company will not
permit the Remarketing Agent to remarket any Bonds at a price
less than the principal amount thereof plus accrued interest, if
any, thereon to the respective dates of remarketing.
Section 6.07. Substitute Liquidity Facility. The
Company will not substitute another liquidity facility for the
obligation of the Banks to purchase Unremarketed Bonds pursuant
to this Agreement unless prior to or simultaneously with such
substitution, there shall be purchased from the Banks, at a price
not less than the principal amount thereof plus accrued interest,
if any, thereon to the date of purchase, all Bank Bonds and the
Company shall have paid to the Agent and the Banks any and all
amounts due and owing to the Agent and the Banks under this
Agreement (after giving effect to the application of the proceeds
of the Bank Bonds to repay the Agent and the Banks in accordance
with Section 2.03).
Section 6.08. Remarketing Agent. Without the prior
written approval of the Required Banks (which approval shall not
be unreasonably withheld), the Company will not appoint or permit
or suffer to be appointed any successor Remarketing Agent unless
the successor Remarketing Agent (i) is a nationally recognized
remarketing agent for municipal obligations and (ii) is the
exclusive remarketing agent for at least $3 billion of municipal
obligations; and the Company will not enter into any successor
Remarketing Agreement or amendment to the Remarketing Agreement
without the prior written approval of the Required Banks which
contains provisions (including without limitation provisions that
protect the rights and interests of the Agent and the Banks) that
are not substantially (other than the identity of the successor
Remarketing Agent and fees payable thereunder) the same in all
respects material, in the sole judgment of the Banks, to the
interests of the Banks as those contained in the predecessor
Remarketing Agreement and the Company shall provide to the Agent
and each Bank a copy of such agreement promptly upon execution
and delivery thereof.
Section 6.09. Other Agreements. The Company will not
enter into any agreement containing any provision which would be
violated or breached by the performance by the Company of its
obligations hereunder or under the Related Documents.
Section 6.10. Reporting Requirements. The Company
will furnish to each of the Banks: (a) within 90 days after the
end of each of the first three quarters of each fiscal year of
the Company, the consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of the end of each such quarter
and the consolidated statements of income, cash flows and
retained earnings of the Company and its Consolidated
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by
the chief financial officer of the Company; (b) within 130 days
after the end of each fiscal year of the Company, a copy of the
annual report of the Company for each such year, containing
consolidated financial statements for such year certified in a
manner acceptable to the Agent by Deloitte & Touche LLP or
another independent public accountant of recognized standing; (c)
simultaneously with the delivery of each of the financial
statements referred to in clauses (a) and (b) above, a
certificate of an authorized officer of the Company stating that
no Default has occurred and is continuing as of such date or, if
any Default has occurred and is continuing as of such date,
specifying the same and the steps being taken by the Company or a
Subsidiary with respect thereto; (d) promptly upon the filing
thereof, copies of reports on Forms 10-K and 10-Q (or their
equivalents) which the Company shall have filed with the
Securities and Exchange Commission; and (e) such other
information respecting the condition or operations, financial or
otherwise, of the Company and the Significant Subsidiaries as the
Agent may from time to time reasonably request.
Section 6.11. Notices. The Company will promptly give
notice to the Agent of (a) any litigation affecting the Company
or any Significant Subsidiary in which the amount involved is
$25,000,000 or more or which in any manner draws into question
the validity or enforceability of this Agreement or any of the
Related Documents and is not covered by insurance and (b) the
occurrence of each Default.
Section 6.12. Maintenance of Existence, Etc. The
Company will, and will cause each of its Significant Subsidiaries
to, preserve and maintain its corporate existence in the
jurisdiction of its incorporation (except in the case of a merger
permitted by Section 6.17 in which the successor corporation
assumes the obligations of the Company under this Agreement) and
the rights, franchises and privileges necessary for the ordinary
conduct of its business, maintain its properties and assets in
good working order and condition and maintain, with respect to
its properties and assets and its business, insurance with
financially sound and reputable insurers against loss or damage
of the kinds and in amounts customarily carried under similar
circumstances by other corporations engaged in the same or
similar businesses and similarly situated. Notwithstanding the
provisions of the foregoing sentence, the Company and any of the
Significant Subsidiaries may self-insure by deductible provisions
in a prudent amount with respect to each loss.
Section 6.13. Compliance with Laws. The Company will,
and will cause each of its Subsidiaries to, comply in all
material respects with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments
and governmental charges imposed upon it or upon its property
except to the extent contested in good faith by appropriate
proceedings and as to which it has provided reserves which are
adequate in accordance with generally accepted accounting
principles.
Section 6.14. Limitations on Liens, Etc. The Company
will not, and will not permit any Significant Subsidiary to,
create, incur, assume or suffer to be created, incurred or
assumed or to exist, any mortgage, deed of trust, pledge, lien,
security interest or other charge or encumbrance of any nature
(all of the foregoing being hereinafter referred to in this
Section 6.14 as "liens") upon or with respect to any of its
property or assets, whether now owned or hereafter acquired,
except that the foregoing restrictions shall not apply to:
(a) liens for taxes, assessments or governmental
charges or levies not yet delinquent or being contested in
good faith by appropriate proceedings;
(b) liens of landlords and liens of carriers,
warehousemen, mechanics and materialmen incurred in the
ordinary course of business for sums not yet due or being
contested in good faith by appropriate proceedings;
(c) liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security,
or to secure the performance of or compliance with statutory
obligations, tenders, bids, leases, surety and appeal bonds,
performance and return-of-money bonds and other similar
obligations (other than obligations for the payment of
borrowed money);
(d) any judgment lien, unless the judgment it secures
shall not, within sixty days after the entry thereof, have
been discharged or execution thereof stayed pending appeal,
or shall not have been discharged within sixty days after
the expiration of such stay;
(e) liens on any property acquired, constructed or
improved by the Company or any Significant Subsidiary after
the date of this Agreement, or liens on any property
existing at the time of the acquisition thereof, provided
that the lien shall not apply to any property theretofore
owned by the Company or any Significant Subsidiary other
than any theretofore unimproved real property on which the
property so constructed, or the improvement, is located;
(f) liens incidental to the conduct of the Company's
or any Significant Subsidiary's business or the ownership of
its property and assets, which were not incurred in
connection with the borrowing of money or the obtaining of
credit, none of which materially interfered with the
Company's or such Subsidiary's use and operation of its
assets or detracts from the value thereof;
(g) liens for the sole purpose of extending, renewing
or replacing in whole or in part the indebtedness secured by
any lien referred to in the foregoing clauses (a) and (e) or
in this clause (g); provided, however, that the principal
amount of indebtedness secured thereby shall not exceed the
indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the
property which secured the lien so extended, renewed or
replaced (and any improvements on such property);
(h) the liens of the Mortgage; and
(i) any lien that qualifies as an "excepted
encumbrance" under Section 6 of the Mortgage, provided that
foreclosure of any liens for taxes, assessments or other
governmental charges so qualifying shall have been
effectively stayed.
Section 6.15. Pension Plans. The Company will not,
and will not permit any Significant Subsidiary to, without the
written consent of the Agent, permit any employee pension benefit
plan (within the meaning of Section 3(2)(A) of ERISA) with
respect to which the Company may have any liability to terminate,
or withdraw from such plan, while there shall exist an
accumulated funding deficiency of more than $10,000,000, unless
such plan is a multiemployer plan of the United Mineworkers of
America or unless the Company shall remain a sponsor of such
plan.
Section 6.16. Limitations on Borrowing. The Company
will not, and will not permit any of the Consolidated
Subsidiaries to, create or incur any indebtedness for borrowed
money ([including, but not limited to, guaranties by the Company
or any such Subsidiary of indebtedness for borrowed money of any
entity other than the Company or any such Subsidiary but]
excluding Short-Term Debt in an aggregate principal amount not
exceeding 10% of Capitalization, excluding Short-Term Debt), if,
immediately after the creation or incurrence of such indebtedness
and the application of the proceeds thereof, if any, the total
principal amount of all indebtedness of the Company and the
Consolidated Subsidiaries taken as a whole for borrowed money
([including, but not limited to, guaranties by the Company and
the Consolidated Subsidiaries of indebtedness for borrowed money
of any entity other than the Company or any Significant
Subsidiary but] excluding Short-Term Debt to the extent specified
above) shall at any time exceed 65% of Capitalization.
Section 6.17. Limitations on Mergers. The Company
will not, and will not permit any Significant Subsidiary to,
merge into or consolidate with any corporation or other entity,
or permit any corporation or other entity to merge into or
consolidate with it or any Significant Subsidiary, or sell or
otherwise dispose of all or substantially all of its or any
Significant Subsidiary's assets to any other corporation or
entity, if, in any such case, (a) either before or after any such
merger, consolidation or disposition, a Default [(other than a
Default listed in Section 7.01(h) through (m))] shall occur or be
continuing or (b) in the case of a merger or consolidation
involving the Company, such successor corporation or entity (if
other than the Company) shall fail to assume the obligations of
the Company under the terms of this Agreement and the Related
Documents to which it is a party, in a manner satisfactory to the
Agent.
ARTICLE VII.
EVENTS OF DEFAULT; REMEDIES
Section 7.01. Events of Default. It shall constitute
an "Event of Default" if any of the following events shall occur
and be continuing:
(a) The Company shall fail to pay when due, or to
cause to be paid when due, any principal of any Disbursement
or shall fail to pay, within five days of the due date
thereof, any interest or fees payable hereunder; or
(b) Any representation or warranty made by the Company
herein or by the Company (or any of its officers) in
connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) The Company shall fail to perform or observe (i)
any term, covenant or agreement contained in Sections 6.04
through 6.08, inclusive or (ii) any other term, covenant or
agreement contained in this Agreement on its part to be
performed or observed and, in the case of clause (ii), if
capable of being remedied, any such failure shall remain
unremedied for 10 days after written notice thereof shall
have been given to the Company by the Agent; or
(d) The Company or any Significant Subsidiary shall
fail to pay the principal of, or interest on, any obligation
of the Company or such Subsidiary for borrowed money (other
than, in the case of the Company, under this Agreement) when
due, whether by acceleration, by required prepayment or
otherwise, for a period longer than any period of grace
provided in such obligation, or fail to perform any other
term, condition or covenant contained in any such
obligation, the effect of which failure to perform is to
cause, or to permit the holder of such obligation or others
on its behalf to cause, such obligation then to become due
prior to its stated maturity, unless such failure shall have
been cured or effectively waived; or
(e) The Company or any Significant Subsidiary shall
generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted
by or against the Company or any Significant Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee or other similar official for it or for any
substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall
occur; or the Company or any Significant Subsidiary shall
take any corporate action to authorize any of the actions
set forth in this subsection (e); or
(f) Any "Event of Default" under and as defined in the
Indenture shall have occurred and be continuing; or
(g) The ratings assigned to the Bond Insurer's long-
term debt or claims paying ability are withdrawn or are
reduced to below BBB- (or its equivalent rating) by S&P and
are withdrawn or reduced to below Baa3 (or its equivalent
rating) by Moody's; or
(h) A Bond Insurer Event of Insolvency shall have
occurred; or
(i) The Bond Insurer shall fail, wholly or partially,
to make a payment when and as required under the provisions
of the Bond Insurance Policy (including without limitation,
principal of, and interest at the Bank Rate on, Bank Bonds);
or
(j) The Bond Insurer shall claim or assert that the
Bond Insurance Policy is invalid or unenforceable against
the Bond Insurer or the Bond Insurer shall repudiate its
obligations or deny that it has any further liability under
the Bond Insurance Policy; or the validity or enforceability
of the Bond Insurance Policy shall be contested in any
contest or proceeding (including an appellate proceeding)
directly or indirectly by the Bond Insurer or any
governmental authority and, in the case of a Person other
than the Bond Insurer, the Bond Insurer shall fail to defend
or assert such validity or enforceability or to appeal such
contest or proceeding pursuant to appropriate proceedings or
actions; or
(k) Any governmental authority with competent
jurisdiction shall announce, find or rule that the Bond
Insurance Policy is null and void or otherwise invalid or
unenforceable against the Bond Insurer; or
(l) The Bond Insurance Policy is surrendered,
cancelled or terminated, or amended or modified in any
material respect, without each Bank's prior written consent;
or
(m) A court of competent jurisdiction enters a final
nonappealable judgment that the Bond Insurance Policy is not
valid and binding on or enforceable against the Bond
Insurer; or
(n) All of the common stock, other than directors'
qualifying shares, of the Company, or of any successor
corporation or entity, shall not be owned, directly or
indirectly, by American Electric Power Company, Inc.; or
(o) Any judgment or order for the payment of money in
excess of $25,000,000 shall be rendered against the Company
or any Significant Subsidiary and either (i) enforcement
proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of
30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
Section 7.02. Remedies.
(a) Suspension of Banks' Obligations.
(i) In the case of an Event of Default under Section
7.01(j) or Section 7.01(k), the obligation of the Banks to
purchase Unremarketed Bonds shall immediately be suspended
(but not terminated) without notice to or demand on any
Person and thereafter the Banks shall be under no obligation
to purchase any Unremarketed Bonds until the Total Combined
Available Commitments are reinstated as described below.
Promptly upon obtaining knowledge of such Event of Default,
the Agent shall notify the Trustee and the Remarketing Agent
of such suspension in writing; provided, however, that
neither the Agent nor any Bank shall incur any liability or
responsibility whatsoever by reason of the Agent's failure
to give such notice and such failure shall in no way affect
the suspension of the Total Combined Available Commitments
or the obligation of the Banks to purchase Unremarketed
Bonds pursuant to this Agreement. If a court of competent
jurisdiction shall thereafter enter a final nonappealable
judgment that the Bond Insurance Policy is not valid and
binding on the Bond Insurer, then the Total Combined
Available Commitments and the obligation of the Banks to
purchase Unremarketed Bonds shall immediately terminate
without notice or demand and thereafter the Banks shall be
under no obligation to purchase Unremarketed Bonds. If a
court of competent jurisdiction shall find or rule that the
Bond Insurance Policy is valid and binding on the Bond
Insurer in accordance with its terms, then the Total
Combined Available Commitments and the obligation of the
Banks under this Agreement shall thereupon be reinstated
(unless the Commitment Termination Date shall otherwise have
occurred). Notwithstanding the foregoing, if three years
after the effective date of suspension of the Total Combined
Available Commitments and the obligation of the Banks to
purchase Unremarketed Bonds pursuant to this Section
7.02(a)(i), this Agreement has not been terminated and
litigation is still pending and a judgment regarding the
validity and enforceability of the Bond Insurance Policy has
not been obtained, then the Total Combined Available
Commitments and the obligation of the Banks to purchase
Unremarketed Bonds shall, unless previously terminated
pursuant to any other provision of this Agreement, at such
time terminate without notice or demand and, thereafter, the
Banks shall be under no obligation to purchase Unremarketed
Bonds.
(ii) The obligations of the Banks to purchase
Unremarketed Bonds shall immediately be suspended without
notice to or demand on any other Person upon the occurrence
and during the continuance of a Bond Insurer Potential
Insolvency and shall be reinstated upon the curing of such
Bond Insurer Potential Insolvency prior to such Bond Insurer
Potential Insolvency becoming a Bond Insurer Event of
Insolvency and shall terminate pursuant to Section 7.02(b)
if such Bond Insurer Potential Insolvency becomes a Bond
Insurer Event of Insolvency.
(iii) The obligations of the Banks to purchase
Unremarketed Bonds shall immediately be suspended without
notice to or demand on any Person upon the occurrence of an
Event of Default under Section 7.01(g) and the Total
Combined Available Commitments shall terminate 30 days
thereafter if such Event of Default shall then be
continuing.
(iv) A suspension pursuant to this Section 7.02(a)
shall not in any event extend the Stated Expiration Date or
affect any other remedy under this Section 7.02.
(b) Termination. Upon the occurrence of an Event of
Default under Section 7.01(h), (i), (l) or (m) or any event which
results in the termination of the Total Combined Available
Commitments pursuant to Section 7.02(a) (any such event, an
"Event of Termination"), the Total Combined Available Commitments
and the obligation of the Banks under this Agreement to purchase
Unremarketed Bonds shall immediately terminate without notice or
demand to any Person and, thereafter, the Banks shall be under no
obligation to purchase Unremarketed Bonds. Promptly upon the
occurrence of such Event of Termination, the Agent shall give
written notice of the same to the Trustee and the Remarketing
Agent; provided, however, that neither the Agent nor any Bank
shall incur any liability or responsibility whatsoever by reason
of the Agent's failure to give such notice and such failure shall
in no way affect the termination of the Total Combined Available
Commitments and the obligation of the Banks to purchase
Unremarketed Bonds pursuant to this Agreement.
(c) Other Remedies. Upon the occurrence of an Event
of Default, the Agent and the Banks shall have all remedies
provided at law or equity, including, without limitation, the
right to demand and receive specific performance; provided,
however, that, except as otherwise provided in subsection (a) or
(b) of this Section 7.02, neither the Agent nor any Bank shall
have the right to suspend or terminate the Total Combined
Available Commitments or the obligation of the Banks to purchase
Unremarketed Bonds under this Agreement upon the terms and
conditions herein stated.
(d) Nature of Remedies. The remedies provided in
subsections (a) and (b) of this Section 7.02 shall only be
exclusive with respect to the Defaults referred to therein to the
extent such remedies relate to the termination of the Total
Combined Available Commitments and the obligation of the Banks to
purchase Unremarketed Bonds under this Agreement. If for any
reason whatsoever the Banks are not able to obtain all such
remedies, then the Banks hereby reserve the right to pursue any
other available remedies, other than acceleration of any amounts
due under this Agreement, whether provided by law, equity or this
Agreement.
Section 7.03. Copies of Notices. The Agent agrees to
furnish to the Company and the Remarketing Agent a copy of any
notice given pursuant to Section 7.02(a) or Section 7.02(b);
provided that the failure to furnish any such copy to the Company
or the Remarketing Agent shall not affect the validity of any
such notice or the rights of the Agent or the Banks in respect
thereof.
ARTICLE VIII.
THE AGENT AND THE BANKS
Section 8.01. Appointment and Authorization. Each
Bank hereby appoints The Bank of New York as the Agent to act as
specified herein and in the Related Documents. Each Bank
irrevocably appoints and authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and the
Related Documents and to exercise such powers hereunder and
thereunder as are delegated to the Agent by the terms hereof and
thereof, together with all such powers as are reasonably
incidental thereto.
Section 8.02. Nature of Duties. The Agent shall have
no duties or responsibilities except those expressly set forth in
this Agreement and the Related Documents. The duties of the
Agent shall be mechanical and administrative in nature. The
Agent shall not have, by reason of this Agreement or the Related
Documents or by reason of any transaction contemplated hereby or
thereby or any instrument or other document made or executed
pursuant hereto or thereto, a fiduciary relationship in respect
of any Bank. Nothing in this Agreement, expressed or implied, is
intended to or shall be so construed as to impose upon the Agent
any obligations in respect of this Agreement or the Related
Documents except as expressly set forth herein or therein.
Without limiting the generality of the foregoing, the Agent shall
not be required to take any action with respect to any Default,
except as expressly provided in Article VII.
Section 8.03. Agent and Affiliates. The Bank of New
York shall have the same rights and powers under this Agreement
and the Related Documents as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent
hereunder, and The Bank of New York and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of
business with, the Company as if it were not the Agent hereunder.
Section 8.04. Consultation with Experts. The Agent
may consult with legal counsel (who may be counsel for the
Company or bond counsel), independent public accountants and
other experts selected by it and shall not be liable to any of
the Banks for any action taken or omitted by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
Section 8.05. Liability of Agent. Neither the Agent
nor any of its directors, officers, agents or employees shall be
liable to any Bank for any action taken or not taken by it
hereunder or under the Related Documents or in connection
herewith or therewith (including, without limitation, the
acceptance or approval or rejection or disapproval of any
document, opinion or instrument or other action taken or not
taken, in each case, in the discretion of the Agent) (i) with the
consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. The
Agent may at any time request instructions from any Bank with
respect to any actions or approvals which by the terms of this
Agreement or the Related Documents the Agent is permitted or
required to take or to grant; and if such instructions are
requested, the Agent shall be entitled absolutely to refrain from
taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from
any action or withholding any approval under this Agreement or
the Related Documents until it shall have received instructions
from such Bank or the Required Banks, as the case may be.
Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement, the
Related Documents or any demand for purchase of Unremarketed
Bonds under this Agreement; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Bond
Insurer; (iii) the satisfaction of any condition specified in
Article IV, except receipt of items required to be delivered to
the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Related Documents or any other instrument or
writing furnished in connection herewith or therewith. The Agent
shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which
may be a wire, telex, telecopy or similar writing) believed by it
to be genuine or to be signed by the proper party or parties.
Section 8.06. Acknowledgement of Independent Appraisal
by Each Bank. Each Bank acknowledges and represents that it has
made its own independent appraisal of the business, affairs and
financial condition of each of the Bond Insurer and the Company,
will continue to be responsible for making its own independent
appraisal of such matters and has not relied upon and will not
hereafter rely upon the Agent or any other Bank or any
information prepared, distributed or otherwise made available by
the Agent (whether orally or in writing) for any such appraisal
or other assessment or review of the Bond Insurer or the Company.
The Agent shall have no duty or responsibility, either initially
or on a continuing basis, to provide any Bank with any credit or
other information with respect to the business, affairs or
financial condition of the Bond Insurer or the Company, whether
coming into its possession before the Closing Date or at any time
or times thereafter.
Section 8.07. Indemnification of the Agent. To the
extent that the Agent is not reimbursed and indemnified by the
Company, each Bank will, in proportion to its Percentage Share,
reimburse and indemnify the Agent for and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or
asserted against, the Agent in any way relating to or arising out
of this Agreement, the Related Documents or any action taken or
omitted by the Agent hereunder or thereunder; provided, however,
that no Bank shall be liable for any portion of such liabilities,
judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful misconduct.
The obligations of the Banks under this Section 8.07 shall
survive the termination of this Agreement.
Section 8.08. Notices Received by the Agent. Upon
receipt by the Agent of any notices, certificates or documents
delivered by or on behalf of the Company and the Bond Insurer
pursuant to this Agreement and the Related Documents, the Agent
shall provide copies thereof to each Bank.
Section 8.09. Successor Agent. The Agent may resign
at any time by giving written notice thereof to the Banks, the
Trustee and the Company. Upon any such resignation, the Required
Banks and the Company shall agree upon and appoint a successor
Agent. If no successor Agent shall have been so appointed by the
Required Banks and the Company, and shall have accepted such
appointment, within 10 Domestic Business Days after the retiring
Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent which
shall be a commercial bank organized or licensed under the laws
of the United States of America or any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent, and
the retiring Agent shall be discharged from any subsequent duties
and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article
and of Sections 9.04, 9.05 and 9.06 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Agent.
Section 8.10. Excess Payments. Except for payments
made pursuant to Sections 3.01, 3.02, 3.07 and 9.05, if any Bank
shall receive, out of the assets of the Bond Insurer or the
Company or otherwise, any payment on account of any amounts owing
by the Company to such Bank hereunder or under the Bank Bonds
which would result in such Bank receiving an amount in excess of
its Percentage Share of all amounts received by the Banks as
payments on account of the amounts owing hereunder or under the
Bank Bonds, whether the same be paid, received or applied
voluntarily, involuntarily or by operation of law, by application
of any offset or counterclaim on any debt or otherwise, then such
Bank shall purchase for cash from the other Banks an interest in
all of the outstanding obligations of the same class hereunder or
under the Bank Bonds in an amount, determined by the Agent, which
shall result in each Bank receiving its Percentage Share of such
total sums; provided, however, that if any such purchase is made
and the excess payment (or portion thereof) requiring such
purchase is thereafter recovered (in whole or in part) from the
purchasing Bank, then such purchase shall be pro tanto rescinded
and the applicable portion of the purchase price restored to the
purchasing Bank, without interest; and provided further, however,
that nothing in this Section 8.10 shall impair the right of any
Bank to exercise any right of set-off or counterclaim it may have
and to apply the amount subject to such exercise to the payment
of indebtedness of the Company other than its indebtedness under
this Agreement.
Section 8.11. Payments to Banks. Upon and only upon
actual receipt by the Agent of any amounts paid to the Agent for
the account of the Banks hereunder, the Agent shall promptly pay
to each Bank in accordance with its payment instructions set
forth in its Administrative Questionnaire (or such other account
as such Bank may designate to the Agent for such purpose), in
like funds as those received by the Agent, an amount equal to
such Bank's pro rata share of such amounts, determined in
accordance with the Percentage Share of such Bank; provided,
however, that each Bank shall be entitled to receive any such
amounts only to the extent it has not defaulted in its obligation
hereunder to purchase Unremarketed Bonds.
Section 8.12. Disbursements of Purchase Price of
Unremarketed Bonds.
(a) Promptly upon receipt thereof, but in no event
later than 1:15 P.M., New York City time, on the date of receipt
thereof, the Agent shall furnish to each Bank by telecopy a copy
of each Purchase Certificate received by the Agent on behalf of
the Banks, together with a statement of the Agent's calculation
of each Bank's Percentage Share of the Purchase Price demanded
under such Purchase Certificate, and the Agent shall confirm by
telephone that each Bank has received such copy and such
statement. To facilitate payments of the Purchase Price of
Unremarketed Bonds pursuant to Section 2.01, unless the Agent
shall have been notified by any Bank prior to 1:30 P.M., New York
City time, on the date of any such payment of the Purchase Price
that such Bank does not intend to pay such Purchase Price, the
Agent may assume that such Bank has determined to pay such
Purchase Price and may, in reliance on such assumption (but
without any obligation to do so), pay to the Trustee for the
account of such Bank an amount equal to such Bank's Percentage
Share of such Purchase Price. Each such payment shall be deemed
to constitute an advance made by the Agent to such Bank and the
paying of such Bank's Percentage Share of such Purchase Price by
such Bank, and shall be conclusive and binding upon such Bank.
(b) Each Bank shall be obligated to pay to the Agent
the amount of any advance made by the Agent to such Bank pursuant
to Section 8.12(a) in immediately available funds, together with
interest at the Federal Funds Rate. The obligation of each Bank
to remit amounts to the Agent pursuant to this Section 8.12(b)
shall be absolute, unconditional and irrevocable under any and
all circumstances and may not be terminated for any reason
whatsoever. All amounts received by the Agent pursuant to this
section 8.12(b) shall be for the account of the Agent.
(c) If any Bank does not repay any advance made to
such Bank pursuant to Section 8.12(a) by the Agent's close of
business on the Domestic Business Day next succeeding the date
such advance was made, the Agent shall be entitled to retain for
its own account any Bank Bonds purchased with such advance and to
recover such sum from the Company together with interest from the
date such advance was made to the date the same is paid in full
at the Base Rate and to exercise all rights of such defaulting
Bank under this Agreement with respect to such Bank Bonds and the
Purchase Price of such Bank Bonds; provided that if such
defaulting Bank repays its advance to the Agent in accordance
with Section 8.12(b), such payment shall constitute such Bank's
Percentage Share of such Purchase Price for purposes hereof.
Nothing in this Section 8.12(c) shall be deemed to relieve any
Bank from its obligation to fulfill its commitment under Section
2.01 or to prejudice any rights which the Company may have in
respect of such commitment.
(d) If the Agent on behalf of any Bank, in its
discretion, determines not to advance from the Agent's funds
pursuant to Section 8.12(a) such Bank's Percentage Share of the
Purchase Price of any Unremarketed Bonds pursuant to Section
2.01, the Agent will notify such Bank of such determination and
furnish to such Bank any necessary payment instructions with
respect to such disbursement by telecopy at or prior to
1:15 P.M., New York City time, on the date of receipt by the
Agent of a Purchase Certificate and such Bank shall pay its
Percentage Share of such Purchase Price by wire transfer of funds
directly to the Trustee in accordance with such Purchase
Certificate.
Section 8.13. Agent's Fee. The Company shall pay to
the Agent for its own account fees in the amounts and at the
times previously agreed upon between the Company and the Agent.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure
by the Company therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Agent and the
Required Banks and, in the case of an amendment, the Company, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no amendment, modification, supplement or
waiver of or to any provision of this Agreement, and no consent
to any departure by the Company therefrom shall, unless the same
shall be in writing and signed by all of the Banks, do any of the
following: (i) increase or decrease the Combined Available
Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any additional
obligation; (ii) reduce the Bank Rate or the principal of or the
rate of interest on any Disbursement or any fees hereunder; (iii)
change the definition of "Required Banks" or the percentage of
Unremarketed Bonds held or Combined Available Commitments, as the
case may be, required to take any action hereunder; (iv) modify
any of the provisions of Section 2.07, 2.12, 3.01, 3.02, 3.03,
4.03, 8.10, 9.04, 9.05 or 9.06; (v) postpone the date fixed for
any payment of principal of or interest on any Disbursement, or
of or on any Bank Bonds, or any fees hereunder or for any
reduction or termination of any commitment of any Bank hereunder;
or (vi) extend the Stated Expiration Date or change the
definition of "Term Period Commencement Date" or "Commitment
Termination Date"; and provided further, however, that no
amendment, modification, supplement or waiver of or to any
provision of this Agreement shall be effective unless signed by
the Agent if the rights or duties of the Agent are affected
thereby.
With respect to any modification, amendment, supplement
or waiver contemplated by Section 10.04 or 11.03 of the Indenture
and for which the approval of any of the Banks or the Agent is
required, the Agent will use all reasonable efforts to solicit a
response from each Bank with respect to such proposed
modification, amendment, supplement or waiver, and each of the
Banks and the Agent will use all reasonable efforts to provide
such response, within 15 days of such request.
Section 9.02. Notices, Etc. Except as otherwise
expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telecopier
communication) and shall be given to such party: in the case of
the Company or the Agent, at its address or telecopier number set
forth on the signature pages hereof; in the case of any Bank, at
its address or telecopier number set forth in its Administrative
Questionnaire; in the case of the Trustee and the Remarketing
Agent, to their respective addresses or telecopier numbers set
forth in the Sixth Supplement and/or the other Related Documents;
or, as to each of the foregoing, at such other address as shall
be designated by such Person in a written notice to the others.
All such notices and communications shall be effective (i) if
given by telecopier, when transmitted to the telecopier number
specified as aforesaid, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, and (iii) if given by
other means, when delivered at the address specified as
aforesaid, except that written notices to the Agent and/or the
Banks pursuant to the provisions of Article II, IV or VIII and to
the Trustee and/or the Company pursuant to Article III or IV
shall not be effective until received by such Person.
Section 9.03. No Waiver: Remedies. No failure on the
part of the Agent or any Bank to exercise, and no delay in
exercising, any right under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right under this Agreement preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
Section 9.04. Indemnification. The Company agrees to
indemnify the Agent and each Bank, their respective affiliates
and the respective directors, officers, agents and employees of
the foregoing (each an "Indemnitee") and hold harmless each
Indemnitee from and against any and all liabilities, losses,
damages, costs and reasonable expenses of any kind, including,
without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party
thereto) in any way relating to or arising out of:
(a) any inaccuracy in any material respect, or any
untrue statement or alleged untrue statement of any material
fact, contained in any Offering Circular or any amendment or
supplement thereto, or by reason of the omission or alleged
omission to state therein a material fact necessary to make
the statements contained in any Offering Circular or any
amendment or supplement thereto in the light of the
circumstances under which they were made, not misleading,
other than any action or proceeding alleging any inaccuracy
in a material respect, or an untrue statement of a material
fact, with respect to information supplied by and describing
a Bank in any Offering Circular or any amendment or
supplement thereto (the "Bank Information"), or alleging any
omission to state therein a material fact necessary to make
the statements in the Bank Information, in the light of the
circumstances under which they were made, not misleading; or
(b) the execution, delivery or performance of this
Agreement, any Related Document or any transaction
contemplated hereby or thereby (including without limitation
by reason of or in connection with the purchase by any Bank
of Unremarketed Bonds or the failure by any Bank to make any
payment required to be made by it under this Agreement);
provided, however, that the Company shall not be required to
indemnify any Indemnitee pursuant to this Section 9.04(b)
for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by
the willful misconduct or gross negligence of such
Indemnitee as determined by a court of competent
jurisdiction.
Nothing in this Section 9.04 is intended to limit the obligations
of the Company contained in Articles II and III or the commitment
of any Bank to purchase Unremarketed Bonds in accordance with the
terms hereof (or to prejudice any rights which the Company may
have in respect of such commitment).
Section 9.05. Liability of the Agent and the Banks.
(a) The Company assumes all risks of the acts or
omissions of the Trustee, the Remarketing Agent and the Bond
Insurer with respect to its use of the commitment of the Banks
under this Agreement. Neither the Agent nor any Bank nor any of
their respective officers, directors, agents or employees shall
be liable or responsible for, and none of the Company's
obligations under this Agreement shall be affected by: (i) the
use which may be made of the commitment of the Banks under this
Agreement or any acts or omissions of the Trustee and/or the
Remarketing Agent in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii)
payment by any Bank against presentation of a Purchase
Certificate which does not comply with the terms of this
Agreement; or (iv) any other circumstances whatsoever in making
or failing to make payment under this Agreement; provided that
the Company shall have a claim against a Bank, and such Bank
shall be liable to the Company, to the extent of any direct, as
opposed to consequential, damages suffered by the Company which
the Company proves were caused by such Bank's willful misconduct
or gross negligence. In furtherance and not in limitation of the
foregoing, the Agent and each Bank may accept documents that
appear on their face to be in order, without responsibility for
further investigation.
(b) Neither the Agent nor any Bank shall be liable or
responsible in any respect for, and none of the Company's
obligations under this Agreement shall be affected by, (i) any
mechanical error, omission, interruption or delay, in each case,
in the transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with this Agreement,
or (ii) any action, inaction or omission which may be taken by it
in good faith, absent willful misconduct or gross negligence (in
which event the extent of the Agent's or such Bank's potential
liability to the Company shall be limited as set forth in the
immediately preceding paragraph), in connection with this
Agreement.
Section 9.06. Costs, Expenses and Taxes. The Company
shall pay (i) all reasonable out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the
Agent, in connection with the preparation of this Agreement, any
waiver or consent hereunder or any amendment hereof or any
Default or alleged Default and (ii) if an Event of Default
occurs, all reasonable out-of-pocket expenses incurred by the
Agent or any Bank, including (without duplication) the reasonable
fees and disbursements of outside counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom. In addition,
the Company shall pay any and all costs and expenses of the Agent
and the Banks (including reasonable counsel fees and expenses) in
connection with the transfer, exchange and registration of Bank
Bonds and any and all recording, stamp and other taxes and fees
payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Agreement, any
Related Document and such other documents, and agrees to save the
Agent and each Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying
or omission to pay such taxes or fees. To the extent that the
payment of interest on the accrued interest portion of the
Purchase Price of Unremarketed Bonds pursuant to Section 2.05
would be prohibited by law if calculated as interest on the
principal amount of such Unremarketed Bonds, the Company agrees,
to the fullest extent that it may lawfully do so, to pay such
amount (which is not payable under Section 2.05 because of such
prohibition by law) to the Agent, for the account of the Banks,
on demand pursuant to this Section 9.06 as interest on the total
sum advanced pursuant to Section 2.01.
Section 9.07. Binding Effect; Assignment;
Participations.
(a) This Agreement shall be binding upon and inure to
the benefit of the Company, the Agent and the Banks and their
respective successors and assigns, except that the Company shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Agent and all of
the Banks.
(b) Each Bank may at any time grant to one or more
banks or other institutions (each a "Participant") participating
interests in its Combined Available Commitment or any or all of
its Disbursements (including a corresponding interest in its
interest in the Bank Bonds), together with its rights and
obligations hereunder. In the event of any such grant by any
Bank of a participating interest to a Participant, such Bank
shall remain responsible for the performance of its obligations
hereunder and under the Related Documents, and the Company, the
Agent and the other Banks shall deal solely and directly with
such Bank in connection with such Bank's rights and obligations
under this Agreement. Promptly after any Bank grants any such
participating interest, such Bank shall inform the Company of the
identity of the Participant and the amount of such participating
interest. The Company agrees that each Participant shall be
entitled to the full benefit of the rights provided to the Banks
in Sections 3.01, 3.02 and 3.07.
(c) Each Bank may assign to one or more banks or other
institutions (each an "Assignee") all or a proportionate part
(equivalent to an initial Combined Available Commitment under
this Agreement of not less than $10,000,000) of its rights and
obligations under this Agreement, only with and subject to the
consent of the Agent and the Company; it being acknowledged and
agreed that no such assignment shall become effective unless and
until the Agent shall have received written confirmation from the
Company that such assignment, in and of itself, will not result
in any reduction, suspension or withdrawal of the ratings
assigned by Moody's, S&P and Fitch to the Bonds or otherwise
prevent the Company from complying with its obligations under
Section 4.14 of the Agreement of Sale. Upon execution and
delivery of an instrument of assumption, payment by the Assignee
to the transferor Bank of an amount equal to the purchase price
agreed between such Assignee and such transferor Bank and the
preparation by the Agent and the execution and delivery by the
parties thereto of a supplement to this Agreement reflecting such
assignment, such Assignee shall be a Bank party to this Agreement
and shall have all of the rights and obligations of a Bank with a
Combined Available Commitment and a Percentage Share as set forth
in such supplement, and the transferor Bank shall be released
from its obligations hereunder to a corresponding extent, in each
case, without any further consent or action by any Person. In
connection with any such assignment, the transferor Bank shall
pay to the Agent an administrative fee of $2,500 for processing
such assignment.
(d) Any Bank may at any time assign all or any of its
rights under this Agreement to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations
hereunder.
Section 9.08. Severability. Any provision of this
Agreement which is prohibited, unenforceable, or not authorized
in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability
or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section 9.09. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York (without giving effect to its choice of law
principles).
Section 9.10. Waiver of Jury Trial. The Agent and
each Bank and the Company waive the right to trial by jury in any
civil action or proceeding arising out of, based upon, or in any
way connected to this Agreement.
Section 9.10. Jurisdiction; Service of Process. In
connection with any civil action or proceeding arising out of,
based upon or in any way connected to this Agreement, the Company
submits to the non-exclusive jurisdiction of state and federal
courts located in the City and State of New York in personam and
agrees that such courts are convenient forums. The Company
waives personal service upon it and consents to service of
process by mailing a copy thereof to it at 1 Riverside Plaza,
Columbus, Ohio 43215, Attention of G. P. Maloney, by registered
or certified mail.
Section 9.11. Survival of Representations and
Warranties. All agreements, representations and warranties made
in this Agreement and in any certificates delivered pursuant
hereto shall survive the execution and delivery of this
Agreement, and the agreements contained in Sections 3.01, 3.02,
3.07, 9.04 and 9.06 shall survive payment of the Bonds, the
reimbursement to the Agent and each Bank of any payments or
disbursements under this Agreement and the termination of this
Agreement.
Section 9.12. Entirety. This Agreement constitutes
the entire agreement of the parties hereto with respect to the
commitment of the Banks to purchase Unremarketed Bonds and
supersedes all prior understandings of such parties with respect
to the subject matter hereof.
Section 9.13. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together,
shall constitute but one and the same agreement.
Section 9.14. Headings. Section headings and the
table of contents 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 9.15. Effectiveness. This Agreement shall
become effective upon receipt by the Agent of counterparts hereof
signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of
telegraphic, telex, facsimile or other written confirmation from
such party of execution of a counterpart hereof by such party).
Section 9.16. Beneficiaries. Nothing contained
herein, express or implied, is intended to give any Person other
than the parties hereto, the Trustee and the holders of the Bonds
any right, remedy, or claim hereunder or by reason hereof;
provided that the provisions of clause third of Section 2.03(d)
(iii) providing for amounts to be rebated to the Bond Insurer
under certain circumstances are for the benefit of, and shall be
directly enforceable by, the Bond Insurer.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the dates set forth
below.
INDIANA MICHIGAN POWER COMPANY
By
Name:
Title:
One Summit Square
Fort Wayne, Indiana 46801
Attention: President
with a copy to:
American Electric Power
Service Corporation
1 Riverside Plaza
Columbus, Ohio 43215
Attention: Vice President-Finance
THE BANK OF NEW YORK, as Agent
By
Name:
Title:
Address: One Wall Street
New York, NY 10286
Attention: Dennis Pidherny
Telephone: 212-635-7547
Telecopy: 212-635-7023
BANKS
Initial Available Principal THE BANK OF NEW YORK
Commitment:
Initial Available Interest
Commitment: By
Initial Combined Available Name:
Commitment: Title:
Percentage Share:
EXHIBIT A
FORM OF
CERTIFICATE REQUESTING
PURCHASE OF UNREMARKETED BONDS
The undersigned, a duly authorized officer of the
undersigned trustee (the "Trustee"), hereby certifies to The Bank
of New York, as Agent (the "Agent"), pursuant to Section
4.03(a)(i) of the Standby Bond Purchase Agreement, dated as of
June 28, 1995, among Indiana Michigan Power Company (the
"Company"), the Banks party thereto and the Agent (as amended
from time to time in accordance with its provisions, the
"Purchase Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined) relating to
$50,000,000 City of Rockport, Indiana Pollution Control Revenue
Refunding Bonds (Indiana Michigan Power Company Project) Series
1995B (the "Bonds"), that:
(1) The Trustee is the trustee under the Indenture for
the Bonds.
(2) The Trustee is making demand for payment by the
Banks under Section 2.01 of the Purchase Agreement in
respect of the Purchase Price of Unremarketed Bonds which is
due and payable on _____________ (the "Purchase Date").
(3) The amount being demanded for payment by the Banks
under Section 2.01 of the Purchase Agreement is $__________,
which amount:
(i) represents the sum of (a) $__________, the
aggregate principal amount of Unremarketed Bonds on the
Purchase Date, plus (b) $____________, the amount of
interest which is accrued and unpaid thereon to the
Purchase Date, and
(ii) should be provided in [immediately
available/next day] funds to [specify account
information and any applicable wire transfer
instructions].
(4) The undersigned has not received any notice from
the Agent that the obligations of the Banks to purchase
Unremarketed Bonds have been suspended or terminated.
(5) To the best knowledge of the Trustee, the
conditions precedent to the purchase of Unremarketed Bonds
on the Purchase Date specified in Section 4.03(a)(iv) and
(v) of the Purchase Agreement have been fulfilled.
The Trustee hereby acknowledges that, pursuant to the
terms of the Purchase Agreement, and subject to upward adjustment
as provided in the Purchase Agreement, the honoring by the Banks
of the demand for payment made by this Certificate will
automatically result in downward adjustments in the amounts of
the Total Combined Available Commitments, the Available Principal
Commitments of the Banks and the Available Interest Commitments
of the Banks in accordance with the terms of the Purchase
Agreement.
IN WITNESS WHEREOF, the Trustee has executed and
delivered this Certificate as of the ____ day of _______ , 19___.
[NAME OF TRUSTEE]
as Trustee
By:________________________
[Name and Title]
EXHIBIT B
FORM OF NOTICE OF INTEREST RATE ELECTION
The Bank of New York, as Agent
under the Standby Bond
Purchase Agreement referred
to below
One Wall Street
New York, NY 10286
Dear Sirs:
This Notice of Interest Rate Election is being
delivered by Indiana Michigan Power Company (the "Company")
pursuant to the Standby Bond Purchase Agreement (as amended from
time to time, the "Agreement") dated as of June 28, 1995 among
the Company, the Banks listed therein and The Bank of New York as
Agent, relating to $50,000,000 City of Rockport, Indiana
Pollution Control Revenue Refunding Bonds (Indiana Michigan Power
Company Project) Series 1995B:
[(1) The Company hereby elects to continue1 $[specify
aggregate principal amount of Disbursements to which this
election applies]2 of [Domestic Disbursements][Euro-Dollar
Disbursements having [a/an] [one] [two] [three] [six] month
Interest Period ending [specify date] as [Domestic
Disbursements][Euro Dollar Disbursements having [a/an] [one]
[two] [three] [six] month Interest Period ending [specify
date]3.]
[(2) The Company hereby elects to convert $[specify
aggregate principal amount of Disbursements to which this
election applies]2/ of [Domestic Disbursements] [Euro-Dollar
Disbursements] having [a/an] [one] [two] [three] [six] month
Interest Period ending [specify date] to [Domestic
Disbursements][Euro-Dollar Disbursements having [a/an] [one]
[two] [three] [six] month Interest Period ending [specify
date]3/.]
(3) The election[s] specified in this Notice of
InterestRate Electionshall becomeeffective on[specifydate]4.
Capitalized terms used herein that are not defined
herein shall have the meaning specified in the Agreement.
Very truly yours,
INDIANA MICHIGAN POWER
COMPANY
By ___________________________
Name:
Title:
1 Choose either (or both) of paragraph (1) (to continue
the current interest rate election) and paragraph (2)
(to convert interest rate election) to the extent
applicable, and renumber paragraphs accordingly.
2 If such election applies to less than all of such
Disbursements, the aggregate principal amount to which
such election applies, and the remaining portion to
which it does not apply, must be at least $3,000,000.
3 Refer to definition of Interest Period.
4 Refer to Section 2.06(a) of Standby Bond Purchase
Agreement.
EXHIBIT C
EXTENSION AGREEMENT
Indiana Michigan Power Company
The Bank of New York, as Agent
under the Standby Bond Purchase
Agreement referred to below
One Wall street
New York, NY 10286
Re: $50,000,000 City of Rockport, Indiana Pollution
Control Revenue Refunding Bonds (Indiana Michigan
Power Company Project) Series 1995B
Due:
Gentlemen:
The undersigned hereby agree to extend, effective
[Extension Date], the Stated Expiration Date under the Standby
Bond Purchase Agreement dated as of June 28, 1995 among Indiana
Michigan Power Company, the Banks listed therein and The Bank of
New York, as Agent (the "Standby Bond Purchase Agreement"), for
one year to [date to which the Stated Expiration Date is
extended]. Terms defined in the Standby Bond Purchase Agreement
are used herein as therein defined.
This Extension Agreement shall be construed in
accordance with and governed by the law of the State of New York.
[NAME OF BANK]
By________________________________
Title:
[NAME OF BANK]
By________________________________
Title:
Agreed and accepted:
INDIANA MICHIGAN POWER COMPANY<PAGE>
By____________________________
Title:
THE BANK OF NEW YORK, as Agent
By____________________________
Title:
